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BAR  EXAMINATION 
REVIEW 


BY 

ALBERT  H.  PUTNEY,  A.B.,  D.C.L.,  LL.D. 

Author  of  "Governmext  is  Uxited  States,"  "United  States  Cosstitutioxal 

History  and  Law,"  "Law  Library,"  "Baxkixg.  Cirrexcy  axd 

Exchaxge,"  "Foreigx  Commercial  Laws,"  etc. 


CHICAGO 
ILLINOIS    BOOK   EXCHANGE 

1910 


■      \c\to 

COPYKIGHT,    1910 

ILLINOIS  BOOK  EXCHANGE 


-7  ^  f  0-  ^1 


R.  R.  DONNELLEY  &  SONS  COMPANY 
CHICAGO 


PREFACE. 

The  purpose  of  the  present  book  is  to  serve  as  a  final  review 
for  a  student  about  to  take  a  state  bar  examination.  The 
student  studying  this  book  is,  therefore,  supposed  to  have 
had  a  regular  course  in  all  the  subjects  upon  which  the  bar 
examination  is  to  be  based.  It  is  believed  that  all  the  subjects 
upon  which  questions  are  asked  in  the  bar  examination  of  any 
state  (with  the  exception  of  Louisiana,  whose  system  of  law 
presents  striking  differences  to  those  of  all  the  other  states) 
are  here  treated.  Some  of  the  subjects  upon  which  examina- 
tions are  only  given  in  a  few  states  have  been  treated  more 
briefly  for  this  reason. 

The  author  has  particularly  endeavored  to  discuss  such 
points  of  law  as  his  ten  years'  experience  in  preparing 
students  for  bar  examinations  has  taught  him  are  the  most 
essential  to  the  student  at  this  time.  The  greatest  amount  of 
space  has,  in  the  main,  been  given  to  those  subjects  where  a 
student  is  most  apt  to  be  deficient. 

The  form  of  questions  and  answers  used  in  this  book  is 
believed  to  be  the  only  form  in  which  printed  questions  and 
answers  can  be  of  real  benefit  to  the  student.  The  teaching 
of  the  text  by  questions  and  ansAvers  and  the  necessary  repe- 
titions connected  therewith  involve  an  unnecessary  waste  of 
time  and  space,  while  the  natural  result  of  following  ques- 
tions with  the  answers  on  the  same  page  is  almost  invariably 
to  give  the  student  a  much  higher  idea  of  his  knowledge 
of  a  subject  than  is  justified  by  the  facts,  resiilting  in  the 
majority  of  cases  in  a  real  injury  to  the  student  rather  than 

benefit. 

The  Appendices,  in  the  volume,  all  contain  matter  which 
should  be  reviewed  by  the  student  at  this  time. 

ALBERT  H.  PUTXEY. 
Chicago,  August.  1910. 


CONTENTS. 


Page 

Chapter  I.    Contracts   7 

Chapter  II.    Agency  IG 

Chapter  III.    Partnership   22 

Chaptei-  IV.    Sales   28 

Chapter  V.    Bailments    32 

Chapter  VI.     Bills  and  Notes 35 

Chapter  VII.     Guaranty  and  Suretyship 43 

Chapter         VIII.    Insurance 49 

Chapter  IX.     Criminal    Law 51 

Chapter  X.    Torts    64 

Chapter  XI.    Domestic  Relations 78 

Chapter  XII.     Real    Propei-ty 83 

Chapter         XIII.    Personal  Property 107 

Chapter  XIV.    Equity  Jurisprudence Ill 

Chapter  XV.     Private  Corporations 134 

Chapter  XVI.    Public  Corporations 149 

Chapter        XVII.    Wills    157 

Chapter      XVIII.    Constitutional   Law 160 

Chapter         XIX.     Conflict  of  Laws 177 

Chapter  XX.     Intei-pretation  and  Construction 183 

Chapter         XXI.     Common  Law  Pleading 187 

Chapter        XXII.    Equity  Pleading 204 

Chapter      XXIII.    Evidence    214 

Chapter       XXIV.    Damages    228 

Chapter         XXV.    Code  Pleadings 231 

Chapter       XXVI.    Legal  Ethics 2.33 

Chapter     XXVII.    Irrigation  Law 234 

Chapter  XXVIII.     Mining    Law 239 

Text    Questions 240 

Answers    289 

Legal    Maxims 31 3 

Appendix  A.    Imiwrtant  Dates  in  English  Legal  History 317 

Appendix  B.    Constitution  of  the  United  States 319 

Appendix  C.    Constitution  of  Illinois 337 

Appendix  D.    Fniform  Negotiabl'^  Act 393 

Appendix  E.    Code  of  Legal  Ethics 4.33 

Appendix  F.    Uniform  Sales  Act 449 

Definitions  and  Latin  Legal  Tornis 483 


PUTNEY'S    BAR    EXAMINATION 
REVIEW 


CHAPTER  I. 
CONTRACTS. 

I 

Blackstone  defines  a  contract  as  "an  agreement,  upon 
sufficient  consideration  to  do,  or  not  to  do,  a  particular 
thing."  This  definition  was  adopted  by  Chief  Justice  Mar- 
shall of  the  Supreme  Court  of  the  United  States. 

The  following  five  reciuisites  are  necessary  for  the  crea- 
tion of  a  binding  contract : 

(1)  Competent   parties. 

(2)  An  agreement  between  these  parties  reached  by  an 
offer  made  by  one  and  accepted  by  the  other. 

(3)  This  agreement  must  be  for  a  lawful  purpose. 

(4)  It  must  be  based  upon  a  consideration,  and, 

(5)  It  must  be  made  with  all  the  formalities  required 
by  law. 

Parties  to  a  Contract. 

There  must  be  at  least  two  parties  to  every  contract,  and 
there  may  be  any  larger  number.  Any  person  can  enter 
into  a  contract  who  does  not  fall  within  one  of  the  classes 
of  exceptions.  The  following  classes  of  persons  lack  the 
power  of  contracting  either  wholly  or  in  part : 

Minors. 

Persons  Avho  are  insane  or  otherwise  of  unsound  mind. 

Drunken  person. 

Spendthrifts,  for  whom  guardians  have  been  appointed. 

Married  women. 

A  minor  is  a  person  who  has  not  reached  the  legal  age 
fixed  by  the  law  of  the  state  or  country  in  which  he  lives. 
Under  the  Common  Law,  this  age  was  twenty-one  years, 
and  the  same  age  is  still  fixed  for  males  in  each  of  the 

7 


8  putney's  bar  examination  review 

states  of  this  country.  In  the  case  of  females  the  legal  age 
is  eighteen  years  in  some  of  the  states,  and  twenty-one  in 
the  balance. 

In  general,  the  contracts  of  a  minor  are  voidable.  The 
old  doctrine  that  certain  of  the  contracts  of  an  infant  were 
absolutely  void  has  now  been  abandoned.  It  is  generally 
said  that  an  infant  is  liable  on  his  contracts  for  necessaries. 
In  reality,  however,  an  infant  is  not  liable,  in  such  cases, 
on  the  contract  which  he  has  made  but  on  a  quasi  contract 
for  what  the  goods  were  reasonably  worth.  The  contract 
price  is  prima  facie  the  value  of  the  necessaries  purchased, 
but  this  may  be  rebutted.  The  term  necessaries  is  a  vari- 
able one,  its  exact  limits  varying  according  to  the  situation 
in  life  of  the  particular  infant ;  in  general  a  rather  liberal  in- 
terpretation will  be  given  to  the  term.  An  infant  is  also 
liable  on  all  quasi  contracts  and  on  contracts  made  in  set- 
tlement of  any  tort  which  he  has  committed,  provided  the 
settlement  is  a  fair  one.  An  infant  is  bound  on  a  contract 
of  enlistment  in  the  army,  on  a  bastardy  bond,  on  a  con- 
tract of  marriage  (provided  he  was  over  the  age  of  con- 
sent)— but  not  upon  a  promise  to  marry. 

At  common  law  married  women  had  no  power  of  con- 
tracting. Equity  first  gave  them  this  power  in  a  limited 
degree  with  relation  to  their  separate  estates,  and  by  stat- 
ute nearly  all  disabilities  in  this  line  have  been  removed. 
In  Illinois  at  the  present  time,  a  married  woman  has  full 
power  of  contracting,  except  that  she  cannot  enter  into  a 
contract  of  partnership  without  the  consent  of  her  husband. 
In  some  other  states  a  married  woman  may  make  any  con- 
tract except  that  of  suretyship. 

The  contract  of  an  insane  person  is,  in  general,  void  un- 
less made  in  a  lucid  interval.  A  contract  made  with  an 
insane  person  Ijcforo  he  was  adjudicated  insane,  will  gen- 
erally be  upheld  where  no  unfair  advantage  was  taken  of 
such  insane  person,  and  his  condition  was  unknown  to  the 
person  dealing  with  him.  Contracts  of  persons  not  adjudi- 
cated insane,  ])ut  who  are  of  unsound  mind,  are  generally 
held  to  be  voidable.     Any  insane  person  is  liable   (on  an 


CONTRACTS  9 

obligation  on  a  quasi  contract)  for  the  necessaries  furnished 
to  him. 

A  contract  is  voidable  when  one  of  the  parties  thereto 
was  so  drunk  at  the  time  of  the  making  of  the  contract  as 
not  to  understand  the  nature  of  his  act. 

Contracts  with  aliens  are  binding,  subject  to  being  sus- 
pended by  the  breaking  out  of  war  between  the  countries 
of  which  the  different  parties  to  the  contract  are  citizens. 

Offer  and  Acceptance. 

A  contract  can  only  be  made  by  means  of  an  offer  on 
one  side  followed  by  the  acceptance  of  such  offer  on  the 
other.  An  oft'er  may  be  either  express  or  implied.  An 
oft'er  after  being  made  may  be  withdrawn  at  any  time  by 
proper  notice,  unless  a  consideration  was  given  for  the 
holding  the  offer  open  for  a  certain  period.  If  any  offer 
is  not  withdrawn  it  remains  open  until  it  is  accepted  or 
rejected,  or  until  the  expiration  of  the  time  for  which, 
by  the  terms  of  the  offer,  it  was  to  remain  open;  or  until 
the  expiration  of  a  reasonable  time,  if  no  time  was  speci- 
fied during  which  such  offer  was  to  remain  open. 

The  acceptance  of  an  offer,  which  is  still  open,  completes 
a  binding  contract.  It  is  too  late  to  withdraw  an  offer  after 
it  has  been  accepted.  Acceptance  may  be  either  express 
or  implied.  An  acceptance  of  an  oft'er  in  order  to  com- 
plete a  contract,  must  be  of  the  exact  terms  of  the  offer.  A 
modified  acceptance  is  in  reality  a  rejection  of  the  first 
offer,  and  the  making  of  a  new  offer  in  turn. 

When  an  offer  is  made  by  mail  or  telegraph  the  accept- 
ance may  be  by  the  same  instrumentality,  and  the  mail  or 
the  telegraph  company  is  considered  the  agent  of  the  party 
making  the  offer.  When  a  contract  is  made  by  mail  the 
contract  is  completed  (except  in  Massachusetts)  as  soon 
as  the  letter  containing  the   acceptance  has  been  mailed. 

Illegal  Contracts. 
A  contract  must  be  for  an  object  permitted  by  law.    The 
law  will  not  enforce  an  agreement  for  the  accomplishment 


10  putney's  bar  examination  review 

of  an  object  which  the  law  prohibits.  The  most  important 
illegal  contracts,  or  contracts  against  public  policy,  are 
the  following: 

Usurious  contracts. 

Wagers. 

Sunday  laws. 

Agreements  in  restraint  of  trade. 

Ultra  vires  agreements. 

Agreements  which  tend  to  prejudice  a  nation  in  relation 
with  other  nations. 

Agreements  which  tend  to  injure  the  public  service. 

Agreements  Avhich  tend  to  encourage  litigation. 

Agreements  which  tend  to  obstruct  justice. 

Agreements  which  involve  immorality. 

Agreements  in  restraint  of  marriage. 

Agreements,  lawful  in  themselves,  which  tend  to  further 
an  unlawful  purpose. 

A  usurious  contract  is  one  calling  for  the  payment  of 
more  than  the  rate  of  interest  permitted  by  law.  The  legal 
rate  of  interest,  the  highest  permissible  rate,  and  the  penal- 
ties for  usury  are  fixed  by  statute  and  vary  greatly  in  the 
different  states. 

It  is  not  usury  to  charge  bank  discount,  nor  (according 
to  the  weight  of  authority)  to  charge  compound  interest. 
Interest  laws  do  not  apply  to  loans  of  chattels. 

Gambling  contracts  were  legal  and  enforceable  at  com- 
mon law,  but  are  now  made  illegal  by  statutes  in  the  dif- 
ferent states.  In  a  very  few  states  such  contracts  have 
been  declared  illegal  independent  of  statute. 

Agreements  in  total  restraint  of  trade  are  invalid  as 
against  public  policy.  Agreements  in  partial  restraint  of 
trade,  however,  may  be  upheld  provided  the  restrictions  are 
reasonable  as  respects  limits  of  time  and  space.  AVhat  will 
constitute  such  reasonable  limits  must  depend  upon  the 
facts  of  each  particular  case,  and  upon  the  nature  of  the 
trade  or  occupation  concerned.  Tlio  courts  are  now  much 
more  liberal  than  formerly  in  upholding  such  agreements. 

Contracts  to  be  binding  must  be  based  upon  some  con- 


CONTKACTS  11 

sideration.  An  exception  to  this  rule  is  found  in  the  case 
of  contracts  under  seal,  which  are  enforceable  without 
proof  of  a  consideration.  This  is  sometimes  explained  by 
the  statement  that  the  seal  purports  a  consideration.  This 
is  incorrect.  The  right  to  enforce  a  sealed  contract  by- 
means  of  the  old  action  of  covenant,  was  fully  established 
centuries  before  the  doctrine  of  the  necessity  for  a  consid- 
ration  came  in  with  the  action  of  assumpsit.  The  exten- 
sion of  the  scope  of  this  latter  action  carried  with  it  this 
necessity  for  a  consideration,  but  as  assumpsit  never  was 
extended  to  cover  the  field  of  covenant,  the  necessity  for 
a  consideration  never  became  applicable  to  the  case  of 
sealed  instruments. 

The  various  forms  which  a  valid  consideration  may  take 
are  thus  outlined  by  Mr.  Street  in  his  work  on  "Founda- 
tions of  Legal  Liability": 

"With  the  death  of  Elizabeth  (1603)  the  formative  pe- 
riod in  the  history  of  consideration  came  to  a  close  and 
English  contract  law  was  ready  to  enter  upon  its  modern 
career.  It  will  be  noted  that  several  forms  of  considera- 
tion had  now  appeared.  First  in  importance  is  that  det- 
riment to  the  promisee  (1505)  which  is  necessary  to  give 
validity  to  the  simple  unilateral  promise.  This  is  the  orig- 
inal form  of  the  assumptual  consideration,  and  is  the  type 
which  all  other  forms  of  consideration  are  commonly  but 
erroneously  supposed  to  be  resolvable.  Next  in  importance 
is  the  consideration  of  mutual  promises  (1588).  Least 
notable  of  the  three  different  types  of  the  assumptual  con- 
sideration is  the  consideration  of  legal  duty  or  precedent 
debt.     (Cir.  1550.) 

"It  is  not  possible  by  any  valid  process  to  resolve  these 
different  sorts  of  consideration  into  one.  No  present  det- 
riment to  the  promisee  is  found  either  in  the  consideration 
of  legal  duty  or  in  mutual  promises.  In  the  one  case  the 
detriment  is  past,  having  been  incurred  when  the  debt  was 
created.  In  the  other  there  is  a  contemplated  detriment  to 
both  parties,  i.  e.,  future  performance  of  the  respective 
promises ;  but  the  contract  is  valid  from  the  time  the  mu- 


12  putney's    BAli   EXAMINATION    REVIEW 

tual  promises  are  made.  It  is  indispensable  that  considera- 
tion in  the  sense  of  detriment  should  concur  with  the 
promise. 

"Of  the  recompense,  or  benefit,  to  the  grantor  of  real 
property,  which  is  necessary  to  pass  the  use  in  equity  to  a 
stranger;  and  of  love  and  affection,  which  is  sufficient  to 
support  a  covenant  to  stand  seized  to  the  use  of  one  closely 
related  by  blood  or  marriage,  we  take  no  further  account, 
as  these  are  not  assumptual  considerations." 

A  mere  benefit  to  the  promisor  by  itself,  is  not  sufficient 
to  constitute  a  valid  consideration. 

JMutual  promises  are  each  the  consideration  for  the  other. 
Forbearance  from  exercising  a  legal  right  is  a  valid  con- 
sideration, but  forbearance  from  doing  something  which 
the  party  has  no  right  to  do,  or  a  promise  to  do  what  one 
is  already  bound  to  do  are  neither  of  them  a  valid  consid- 
eration. The  payment  of  a  part  of  an  undisputed  debt  is 
not  a  valid  consideration  for  the  discharge  of  the  wdiole 
debt. 

Moral  obligation  is  not  a  valid  consideration.  The  theory 
upon  which  a  promise  to  pay  a  debt  barred  by  bankruptcy, 
or  by  the  statute  of  limitations,  is  enforced,  is  not  that  the 
moral  obligation  to  pay  such  a  debt  constitutes  a  considera- 
tion, but  is  based  upon  the  ground  that  such  promise  waives 
a  personal  defense,  which  the  law  allows  the  party,  but 
does  not  compel  him  to  take  advantage  of. 

IMarriage  is  a  valuable  consideration,  and  will  uphold  a 
promise  under  the  same  circumstances  and  conditions  that 
other  valid  considerations  will. 

Statute  of  Frauds. 
A  contract  to  be  valid,  or  at  least  to  be  enforceable  at 
law,  must  be  made  with  all  the  formalities  required  by 
law.  By  far  the  most  important  of  these  requirements  are 
those  contained  in  the  Statute  of  Frauds,  requiring  cer- 
tain contracts  to  be  in  writing.  The  original  (i.  e.,  the 
P^nglish)  Statute  of  Frauds  Avas  passed  in  1676  to  go  into 
effect  in  1677.  Tlie  two  important  sections  of  this  act 
are  the  4th  und  171  li,  the  text  of  which  is  as  follows: 


CONTRACTS  13 

"No  action  shall  be  brought  whereby  to  charge  any 
executor  or  administrator  upon  any  special  promise,  to  an- 
swer damages  out  of  his  own  estate;  (2)  or  whereby  to 
charge  the  defendant  upon  any  special  promise  to  answer 
for  the  debt,  default  or  miscarriages  of  another  person; 
(3)  or  to  charge  any  person  upon  any  agreement  made 
upon  consideration  of  marriage;  (4)  or  upon  any  contract 
or  sale  of  lands,  tenements,  or  hereditaments,  or  any  in- 
terest in  or  concerning  them;  (5)  or  upon  any  agreement 
that  is  not  to  be  performed  within  the  space  of  one  year 
from  the  making  thereof ;  unless  the  agreement  upon  which 
such  action  shall  be  brought,  or  some  memorandum  or  note 
thereof,  shall  be  in  writing,  and  signed  by  the  party  to 
be  charged  therewith,  or  some  other  person  thereunto  by 
him  lawfully  authorized." 

"No  contract  for  the  sale  of  any  goods,  wares  or  mer- 
chandise, for  the  price  of  ten  pounds  sterling  or  upwards, 
shall  be  allowed  to  be  good;  except  the  buyer  shall  accept 
part  of  the  goods  so  sold,  and  actually  receive  the  same, 
or,  give  something  in  earnest  to  bind  the  bargain,  or  in 
part  of  payment,  or  that  some  note  or  memorandum  in 
writing  be  made  and  signed  by  the  parties  to  be  charged 
by  such  contract,  or  their  agents  thereunto  lawfully  au- 
thorized." 

Practically  all  the  states  in  this  country  have  adopted 
the  fourth  section  of  this  statute  (either  verbatim  or  in 
substance)  and  a  majority  of  the  states  have  provisions  in 
their  own  Statute  of  Frauds  similar  to  the  seventeenth  sec- 
tion as  above  quoted.  Illinois  is  one  of  the  states  which 
have  not  adopted  the  seventeenth  section.  The  English 
Statute  of  Frauds  and  the  Statute  of  Frauds  in  nearly  all 
of  the  states,  merely  provide  that  contracts  of  the  classes 
referred  to  shall  be  unenforceable  unless  in  writing.  In  a 
few  states,  however,  it  is  provided  that  the  contracts  men- 
tioned, unless  in  writing,  shall  be  void.  The  distinction  is 
of  importance  under  some  circumstances. 

Contracts  can  bind  only  the  parties  who  have  assented 
thereto,  either  personally  or  by  their  proper  representative. 
The   nearest   exception  to   this   rule   is   found  in   the  case 


14  putney's  bar  examination  review 

where  by  the  terms  of  a  contract  property  is  transferred 
to  a  third  person,  who  without  his  consent  finds  himself 
in  the  position  of  a  trustee. 

A  contract  may  confer  enforceable  rights  upon  a  third 
party.  The  method  of  enforcing  such  rights  will  vary  ac- 
cording to  the  conditions  of  the  case  and  the  practice  of 
the  state. 

If  a  contract  was  entered  into  in  reliance  upon  the  per- 
sonal skill  or  character  of  one  of  the  parties  thereto,  it 
cannot  be  assigned ;  otherwise  it  may  be. 

Conditional  Contracts. 

A  conditional  contract  is  one  which  only  becomes  oper- 
ative upon  the  happening  or  not  happening  of  a  certain 
event,  or  which  is  terminated  by  the  happening  or  not 
happening  of  some  event. 

Conditions  may  be  either  (1)  precedent,  (2)  concurrent, 
or  (3)  subsequent.  A  condition  precedent  is  one  which 
must  be  performed  before  a  contract  becomes  operative. 
Conditions  concurrent  are  conditions  on  each  side  which 
must  be  performed  simultaneously.  Conditions  subsequent 
are  those,  the  breach  of  which  will  terminate  the  liabilities 
under  a  contract  of  the  person  for  whose  benefit  the  con- 
dition subsequent  was  inserted,  or  terminate  the  rights  of 
the  other  party  to  said  contract. 

Defences. 
Among  the  important  defences  which  may  be  set  up 
against  suits  on  contracts  are  mistake,  fraud,  duress  and 
undue  influence.  Mistake  renders  a  contract  void,  while 
fraud,  duress  or  undue  influence  renders  it  voidable.  (Mis- 
take, fraud,  duress  and  undue  influence  will  be  more  fully 
treated  in  the  Chapter  on  Equity  Jurisprudence.) 

Discharge  of  Contracts. 
A  contract  may  be  discharged,  either  wholly  or  in  part, 
either  by  act  of  the  parties  or  operation  of  law.    Discharge 
by  act  of  the  parties  takes  place  either  when  a  contract  is 


CONTRACTS  lo 

performed  according  to  its  terms  by  both  parties ;  or  when 
a  new  contract  or  agreement  is  made  between  the  parties. 
This  new  agreement  may  either  take  the  form  of  mutual 
releases  or  the  substitution  of  a  new  contract.  Where  one 
party  to  a  contract  repudiates  it,  or  renders  it  impossible 
for  the  other  party  to  perform  it,  such  other  party  thereto 
is  released  from  all  liability  thereunder. 

Contracts  may  be  discharged  by  operation  of  law  by 
(1)  death,  (2)  judgment,  (3)  bankruptcy,  or  (4)  lapse  of 
time. 

Contracts  of  a  special  personal  character  are  discharged 
by  death,  but  not  those  involving  property  rights. 

By  a  judgment  on  a  contract  the  contract  becomes  dis- 
charged and  merged  in  the  judgment. 

Bankruptcy  discharges  debts,  not  contracts;  when,  how- 
ever, the  obligation  of  a  contract  is  solely  to  pay  a  certain 
sum  of  money,  a  discharge  in  bankruptcy  will  discharge 
the  contract. 

Under  the  statutes  of  limitation  in  the  several  states, 
liabilities  arising  under  a  contract  will  be  discharged  (or 
perhaps  better,  rendered  unenforceal)le)  after  the  lapse 
of  a  certain  period  of  time,  during  which  there  has  been 
no  payment  made,  or  promise  to  pay  given. 


CHAPTER    II. 
AGENCY. 

Agency  is  the  legal  relation  created  hy  contract  (either 
express  or  implied)  between  two  parties,  by  virtue  of  which 
one  party — the  agent — is  employed  and  authorized  to  rep- 
resent and  act  for  the  other — the  principal — in  dealings 
with  third  persons. 

The  distinguishing  features  of  an  agent  are  (1)  his 
representative  character,  and  (2)  his  derivative  authority. 
In  these  respects  an  agent  differs  from  a  servant. 

Classes  of  Agents. 

A  universal  agent  is  one  who  is  authorized  to  transact 
all  of  the  business  of  his  principal  of  whatever  kind. 

The  authority  of  a  general  agent  is  limited  to  the  rep- 
resentation of  his  principal  in  business  of  a  particular  kind, 
or  in  a  particular  place. 

A  special  agent  is  only  authorized  to  represent  his  prin- 
cipal in  a  particular  transaction. 

An  actual  agent  is  one  appointed  as  such  by  the  principal. 

An  ostensible  agent  is  one  whose  authority  the  principal 
is  estopped  to  deny. 

A  del  credere  agent  is  one  who  guarantees  the  payment 
to  the  principal  of  accounts  due  to  the  principal,  arising 
out  of  contracts  made  by  such  agent. 

An  auctioneer  is  a  person  whose  business  it  is  to  sell 
property  at  public  sale  to  the  highest  bidder.  An  auctioneer 
furnishes,  to  a  certain  extent,  an  exception  to  the  rule  that 
no  person  can  act  as  agent  for  both  parties  to  a  contract. 

Brokers  and  factors  represent  other  persons  in  bargain- 
ing for  the  sale  or  purchase  of  property.  A  factor  has  the 
goods  in  his  possession,  while  a  broker  does  not. 

A  supercargo  is  an  agent  who  accompanies  a  cargo  on 
its  voyage  with  authority  to  sell  such  cargo.    He  also,  gen- 

16 


AGENCY 


17 


erally,  has  the  authority  to  purchase  a  cargo  to  be  taken 
back  by  the  ship  on  its  homeward  voyage. 

An  attorney  at  law  is  an  agent  who  represents  his  prin- 
cipal in  the  trial  of  cases  in  court,  and  in  other  legal 
matters. 

Creation  of  Agency. 

Any  person  who  has  the  general  power  of  contracting 
may  appoint  an  agent.  Any  act  which  a  person  may  legally 
do  himself,  he  may  do  through  another,  except  in  those 
cases  where  the  right  of  the  principal  to  do  a  certain  act 
is  one  personal  to  himself,  e.  g.,  the  right  of  an  attorney 
at  law  to  try  a  case  in  court.  Generally  a  person  cannot 
delegate  to  another  a  power  which  has  been  delegated  to 
him.  Thus  an  agent  cannot  appoint  a  sub-agent  unless  the 
duties  to  be  performed  by  the  sub-agent  are  either  (1)  min- 
isterial, or  (2)  technical  and  of  a  character  for  whose  per- 
formance the  original  agent  is  not  competent. 

An  agent  may  be  appointed  in  several  ways: 

(1)  By  express  appointment.  This  appointment  may 
generally  be  either  written  or  oral.  If  the  agent  cannot 
possibly  carry  out  the  terms  of  his  agreement  in  one  year, 
the  contract  creating  the  agency  must  be  in  writing.  If 
the  agent  is  to  execute  a  sealed  instrument,  his  appointment 
must  be  under  seal. 

(2)  By  authority  of  law,  e.  g.,  the  authority  of  a  wife 
or  child,  deserted  by  the  husband  or  father,  to  bind  such 
husband  or  father  for  necessaries  furnished  to  them. 

(3)  By  necessity;  e.  g.,  the  power  of  a  ship's  master  to 
bind  the  owner  of  the  vessel  by  contract  for  necessary 
repairs. 

Furthermore,  even  although  the  relation  of  agency  does 
not  in  fact  exist,  the  alleged  principal  may  be  estopped 
from  denying  the  existence  of  the  relation,  when  he  has 
held  out  the  alleged  agent  as  being  in  fact  his  agent,  or 
where  he  has  allowed  such  alleged  agent  to  represent  him- 
self as  his  agent,  without  objection. 

A  person  may   also  ratify  the   acts  of  another  person, 


18  putney's  bar  examination  review 

who  has  held  himself  out  as  being  an  agent  of  such  first 
person,  after  the  acts  have  taken  place. 

The  act  ratified  must  be  one  that  the  principal  could 
have  done,  and  could  have  delegated  to  another,  at  the 
time  it  was  done.  Torts  and  voidable  acts  may  be  ratified, 
but,  void  acts  or  illegal  acts  cannot  be  ratified.  One  part- 
ner may  ratify  for  the  firm.  A  corporation  may  ratify 
the  act  of  an  agent.  An  infant  cannot  ratify  the  act  of 
one  claiming  to  be  his  agent. 

The  conditions  of  ratification  have  been  thus  summarized : 
"(1)  Principal  must  be  identified.  (2)  Principal  must 
have  been  in  existence  when  act  ratified  was  done.  (3) 
Principal  must  have  had  power  to  do  the  act  ratified  and 
still  possess  such  power.  (4)  Act  must  have  been  done  by 
the  assumed  agent  as  agent  and  not  as  principal.  (5)  Prin- 
cipal must  have  knowledge  of  material  facts;  unless  he 
intentionally  and  deliberately  assumes  the  contract  with- 
out inquiry,     (6)   Principal  must  ratify  whole  transaction. 

(7)  Eights  of  third  party  must  be  prejudiced  when  conduct 
of  principal   is   sought  to   be   construed   as   a   ratification. 

(8)  The  burden  of  proof  is  upon  the  party  alleging  a  rati- 
fication." (^Mining  and  Lackner's  Analysis  of  the  Law 
of  Agency.) 

A  ratification  may  be  either  express  or  liy  implication. 
An  implied  ratification  will  take  place,  when  the  principal 
accepts  the  benefits  resulting  from  the  acts  of  the  agent,  or 
sues  on  the  contract  made  by  the  agent,  or  acquiesces  in 
the  use  of  his  name  as  principal  by  the  agent. 

An  express  contract  of  agency  may  be  proved  in  the 
same  manner  as  any  other  species  of  contract.  The  exist- 
ence of  an  agency  connot  be  proved  by  the  declaration  of 
the  agent,  but  the  agent  can  testify  in  court,  as  to  the 
existence  of  the  agency,  the  same  as  any  other  person. 

Rights,  Duties  and  Liabilities  of  Principal  and  Agent. 

The  agent  occupies  a  fiduciary  relation  towards  his  prin- 
cipal and  it  is  his  dutj'  to  exercise  the  highest  possible 
degree  of  honesty  and  good  faith  toAvards  him.     Thus,  the 


ACKXCY  19 

agent  may  not  act  both  for  principal  and  third  party 
without  the  consent  of  each ;  if  he  is  authorized  to  purchase 
he  does  not  have  the  right  to  purchase  from  himself;  nor 
if  he  is  authorized  to  sell  or  lease  may  he  ])ecome  pur- 
chaser or  lessee. 

An  agent  must  exercise  a  reasonable,  or  average,  degree 
of  ability  and  carefulness.  If  the  agent  holds  himself  out 
as  an  expert  in  a  certain  line,  he  is  bound  to  exercise  the 
average  degree  of  ability  to  be  expected  from  an  expert 
in  such  line. 

An  agent  must  account  for  all  money,  and  other  property 
of  his  principal  which  come  into  his  possession,  and  when 
necessary  must  keep  accurate  books  of  account  showing 
the  business  of  the  agency. 

An  agent  must  also  give  notice  to  his  principal  of  all 
facts  material  to  the  agency  which  come  to  his  notice,  and 
must  obey  all  the  lawful  instructions  of  his  principal  as 
to  the  agency. 

An  agent  is  liable  to  third  persons  for  all  torts  which 
he  may  commit,  and  all  misrepresentations  which  he  may 
make.  The  principal  is  also  liable  for  all  the  torts  or  mis- 
representations of  the  agent,  which  take  place  in  the  reg- 
ular course  of  business  of  the  agent. 

If  the  agent  contracts  in  his  own  name  he  may  sue  the 
other  party  to  the  contract  in  his  OAvn  name  and  such  third 
person  may  sue  the  agent.  If  the  third  person,  however, 
discovers  who  the  undisclosed  principal  was,  he  may  sue 
either  the  agent  or  the  principal. 

The  agent  is  entitled  to  be  reimbursed  by  the  principal 
for  all  the  expenses  properly  incurred  in  the  course  of  the 
agency,  and  also  to  be  paid  for  his  services  unless  there 
was  an  express  agreement  that  such  services  were  to  be 
rendered  gratuitously.  If  there  is  an  agreement  as  to  what 
the  agent  is  to  be  paid,  he  is  to  be  paid  according  to  tlic 
terms  of  such  agreement;  if  there  is  no  such  agreement  the 
agent  is  entitled  to  receive  what  his  services  are  reasonably 
worth.  If  the  agent  is  prevented  from  completing  his 
agency  through  some  wrongful  net  of  the  pi'ineipal  he  may 


20  putney's  bar  examination  review 

either:  (1)  consider  the  contract  as  rescinded,  and  sue 
for  the  reasonable  value  of  his  services;  or  (2)  bring  an 
action  for  damages  for  breach  of  contract;  or  (3)  wait 
until  the  expiration  of  the  time,  during  which  the  relation 
of  the  agency  was  to  continue,  and  then  bring  an  action 
for  the  actual  damage  sustained. 

An  agent  cannot  recover  for  his  services  if  (1)  he  wrong- 
fully abandons  his  employment,  or  (2)  if  he  acts  for  both 
principal  and  third  party,  without  the  knowledge  and  con- 
sent of  both,  or  (3)  if  the  object  of  the  agency  was  un- 
lawful. 

Termination  of  Agency. 

An  agency  may  be  terminated  either  in  accordance  with 
the  terms  of  the  original  agreement  or  by  the  after  acts 
of  the  parties,  or  by  operation  of  law. 

A  contract  of  agency  is  terminated  according  to  the 
terms  of  the  original  agreement,  either  when  the  time 
during  which  the  agency  was  to  continue  has  expired,  or 
when  the  purpose  of  the  agency  is  accomplished. 

An  agency  is  terminated  by  the  acts  of  the  party  either 
when  the  agency  is  revoked  by  the  principal,  or  renounced 
or  abandoned  by  the  agent,  or  terminated  by  the  mutual 
consent  of  the  parties. 

A  principal  has  always  the  power,  though  not  always 
the  right,  to  revoke  an  agency  at  any  time  unless  the 
agency  was  coupled  with  an  interest  or  given  for  a  valu- 
able consideration.  If  a  principal  without  right  revokes 
an  agency  he  is  liable  in  damages  to  the  agent. 

An  agent  can  always  renounce  the  agency ;  but  if  he  does 
so  contrary  to  the  terms  of  the  contract  he  is  liable  in 
damages  to  the  principal.  An  agent  may  abandon  the 
agency  if  required  to  do  an  illegal  act. 

An  agency  is  terminated  by  operation  of  law  in  several 
difi'erent  ways. 

The  death  of  either  party  will  terminate  an  agency,  ex- 
cept where  it  is  coupled  with  an  interest,  or  where  (in  the 
case  of  the  death  of  the  principal)  the  contract  is  entire 
and  has  been  partly  executed. 


AGEUSrCY  21 

At  common  law,  the  marriage,  of  a  single  woman,  will 
terminate  any  contract  of  agency  to  which  such  woman 
was  a  party. 

The  insanity  of  either  party  suspends  the  operation  of 
the  relation  of  agency  during  the  continuation  of  such 
insanity. 

War,  between  the  country  of  the  agent  and  the  country 
of  the  principal  will  terminate  a  contract  of  agency. 

The  bankruptcy  of  the  principal  will  not  ipso  facto  ter- 
minate a  contract  of  agency,  but  it  will  be  a  ground  which 
will  justify  the  agent  in  terminating  it,  and  the  agent  can 
do  no  act  relative  to  the  estate  of  the  bankrupt  during  the 
continuation  of  bankruptcy  proceedings. 

The  bankruptcy  of  an  agent  will  not  terminate  the 
agency,  unless  such  bankruptcy  will  interfere  with  the 
j)roper  performance  of  his  duties  as  agent. 


CHAPTER    III. 
PARTNERSHIP. 

Partnership  is  the  relation  existing  between  two  or  more 
persons,  who  have  contracted  together  to  carry  on  some 
business  or  enterprise  in  common. 

Attempts  have  often  been  made  to  lay  down  some  one, 
always  present,  characteristic  as  the  distinguishing  mark 
of  a  partnership.  This,  however,  is  impossible.  There  is 
no  one  element  always  to  be  found  in  the  case  of  every 
partnership.  Common  ownership  of  the  firm's  property, 
and  sharing  of  profits  and  losses  are  common  character- 
istics of  partnership,  but  are  sometimes  lacking.  The  most 
important  general  characteristic  of  a  partnership  is  that  of 
the  mutual  agency  of  the  partners,  and,  in  fact,  the  laAv  of 
partnership  is  often  referred  to  as  a  specialized  branch  of 
the  law  of  agency ;  but,  in  the  case  of  a  special  partnership, 
a  special  partner  is  not  an  agent  of  the  partnership  or  of 
the  other  partners. 

"The  existence  of  a  partnership  is  to  be  proved  like  any 
other  competent  evidence  and  subject  to  the  usual  rules 
of  evidence.  *  *  *  Proof  of  such  a  contract  is,  of  course, 
proof  of  partnership.  As  hereinbefore  seen,  the  ultimate 
fact  to  be  proved  is  a  common  ownership  or  joint  pro- 
prietorship of  a  business  and  its  profits.  Any  evidence  hav- 
ing a  legitimate  tendency  to  explain  the  nature  and  ground 
of  profit  sharing  is  admissible  as  tending  to  prove  or  dis- 
prove partnership. 

"A  person  alleging  partnershiji  between  himself  and 
other  persons  is  held  to  a  stricter  degree  of  proof  than 
when  the  question  arises  as  between  alleged  partners  and 
third  persons,  as  partners  are  presumed  to  have  the  means 
of  proving  their  own  partnership.  A  partnership  between 
third  persons  may,  of  course,  be  proved  in  the  same  manner 
as  a  partnership  is  proved  between  the  partners  themselves, 


PARTNERSHIP  23 

but  as  a  stranger  has  not  the  same  means  of  knowledge,  lie 
is  not  held  to  the  same  strictness  of  proof  as  in  establish- 
ing his  own  partnership.  Thus,  much  is  admissible  to  es- 
tablish a  partnership  in  favor  of  third  persons  which  would 
be  wholly  inadmissible  to  prove  a  partnership  inter  se,  and 
much,  if  not  most,  of  that  which  would  be  equally  admis- 
sible for  either  purpose,  such  as  acts  of  the  parties,  will 
have  much  more  decisive  weight  and  significance  to  prove 
a  partnership  against  defendants  than  to  prove  the  like 
partnership  in  their  favor  if  plaintiffs.  So  a  third  person 
seeking  to  hold  one  liable  as  a  partner  need  not  prove  an 
actual  partnership,  but  it  is  sufficient  to  show  a  liability 
as  partner  by  holding  out."  (American  and  English  En- 
cyclopedia of  Law.) 

A  true  partnership  can  only  arise  from  a  contract  be- 
tween the  partners.  Each  partner  must  contract  with  each 
other  partner,  and  must  agree  to  the  admission  of  each 
other  partner  into  the  partnership.  From  this  grows  the 
rule  of  law  known  as  delectus  personarum,  which  prohibits 
one  partner  from  assigning  his  interest  to  a  third  person 
so  as  to  make  such  person  a  member  of  the  partnership. 
This  rule  of  delectus  personarum  does  not  apply  in  the 
cases  of  mining  partnerships  or  of  joint-stock  companies. 
Nor  is  this  rule  violated  by  the  formation  of  a  subpartner- 
ship,  by  which  one  partner  makes  a  contract  with  a  third 
person,  by  which  contract  he  agrees  to  divide  his  profits 
from  the  partnership  with  such  third  party. 

Firm  Property. 
Firm  property  includes  all  property,  either  real  or  per- 
sonal, owned  by  the  partners  as  a  firm,  as  distinguished 
from  that  owned  by  the  partners  individually.  Whether 
particular  property  is  firm  property  depends  upon  the  in- 
tention of  the  partners.  Property  bought  with  the  profits 
of  the  partnership  is  presumed  to  be  firm  property.  The 
legal  title  to  real  property  must  be  held  in  the  name  of 
one  or  more  of  the  partners  individually.  The  interest  of 
a  partner  in  firm  property  is  an  anomalous  one,  he  has  no 


24  putney's  bar  examination  review 

title  to  any  particular  piece  of  firm  property,  while  the 
partnership  continues,  but  only  a  right  to  his  proportionate 
share  of  the  excess  of  the  assets  over  the  liabilities,  upon 
the  dissolution  of  the  partnership.  The  respective  rights 
of  the  partners  in  firm  property  is  to  be  determined  by 
the  partnership  agreement.  The  presumption  is  that  each 
partner  has  an  equal  interest.  If  a  partnership  was  to  con- 
tinue for  some  specified  time,  one  partner  cannot  insist 
on  the  sale  and  division  of  the  partnership  property  before 
the  expiration  of  this  time  except  for  some  good  cause, 
as,  for  example,  misconduct  of  his  partner.  A  partner  may 
give  the  partnership  the  use  of  certain  property,  without 
transferring  the  title  to  it.  There  may  be  a  partnership 
without  any  firm  property. 

Profits  and  Losses. 

Under  the  typical  partnership  agreement,  all  of  the 
partners  share  both  in  the  profits  and  in  the  losses  of  the 
partnership.  Profit  sharing  or  loss  sharing,  however,  does 
not  necessarily  exist  among  partners;  and,  on  the  other 
hand,  because  parties  share  in  the  profits  or  losses  of  a 
certain  transaction  or  business,  it  does  not  necessarily  fol- 
low that  they  are  partners.  The  whole  question  of  the 
division  of  profits  and  losses  is  one  which  can  be  arranged, 
in  any  manner  desired,  by  agreement  between  the  parties 
interested. 

The  Contract. 

A  contract  of  partnership  is  governed  by  the  general 
rules  governing  contracts.  This  contract  need  not  be  in 
writing.  Any  person  who  has  general  power  of  contracting 
may  enter  into  a  contract  of  partnership.  Restrictions  are 
still  placed  upon  the  power  of  a  married  woman  to  enter 
into  this  species  of  contracts;  for  example,  in  Illinois,  a 
married  woman  cannot  make  a  contract  of  partnership 
without  the  consent  of  her  husband.  Unless  such  a  power 
is  conferred  by  its  charter,  a  corporation  cannot  enter 
into  a  partnership. 


PARTXEKSHIP  25 

Kinds  of  Partners. 
The  various  kinds  of  partners  are  as  follows: 

(1)  Ostensible — one  held  out  to  the  public  as  such. 

(2)  Secret — one  whose  connection  with  the  partnership 
is  concealed  from  the  public.  Such  a  partner,  if  his  con- 
nection with  the  firm  is  discovered,  may  be  held  liable  for 
the  debts  of  the  firm,  the  same  as  any  other  partner. 

(3)  Active — one  who  takes  a  part  in  the  management 
of  the  firm. 

(4)  Silent — one  who  takes  no  part  in  the  management 
and  merely  receives  his  share  of  profits. 

(5)  Limited  or  special — one  whose  liability  to  the  cred- 
itors of  firm  is  restricted.  (This  can  only  be  done  by 
strict  compliance  with  statutory  provisions  on  this  subject, 
in  the  laws  of  the  different  states.) 

(6)  Dormant — one  who  is  both  a  secret  and  a  silent 
partner. 

(7)  Nominal — one  who  is  an  apparent  but  not  a  real 
member  of  the  partnership.  Sometimes  a  nominal  partner 
is  some  one  who  lends  the  firm  the  use  of  his  name  so  that 
they  may  obtain  credit. 

(8)  Incoming — one  who  enters  a  previously  existing 
firm.  This  can  only  be  done  with  the  consent  of  all  the 
previous  partners,  and  in  such  a  case  there  is  in  reality  a 
dissolution  of  the  old  partnership  and  the  creation  of  a 
new  one. 

(9)  Retiring — one  who  leaves  a  firm. 

(10)  Liquidating — one  who  winds  up  the  business  of  a 
dissolved  partnership. 

Rights  and  Liabilities  of  Partners. 

The  rights  and  liabilities  of  partners  inter  se,  are  de- 
termined, in  the  main,  by  the  terms  of  the  articles  of  part- 
nership. Except  in  the  cases  of  silent  or  special  partners, 
each  partner  has  a  right  to  a  share  in  the  management 
of  the  firm's  affairs.  In  the  absence  of  any  special  agree- 
ment to  the  contrary,  the  decision  of  the  majority  of  the 
partners   controls   in   all  matters   arising   in   the   ordinary 


26  putney's  bar  examination  review 

course  of  the  partnership  business,  provided  the  majority- 
act  in  good  faith. 

Every  partner  owes  to  the  partnership  the  duty  to  exer- 
cise the  highest  degree  of  good  faith  in  all  matters  relating 
to  the  partnership.  No  partner  has  the  right  to  obtain  for 
himself  profits  or  benefits  arising  from  a  transaction  con- 
cerning firm  interests.  A  partner  has  no  right  to  carry 
on  any  business  which  competes  with  the  business  of  the 
firm,  but,  in  the  absence  of  any  agreement  to  the  contrary, 
he  may  carry  on  a  non-competing  business. 

A  partner  is  entitled  to  be  indemnified  by  the  firm  for 
all  proper  payments  and  disbursements  made  by  him  on 
account  of  the  firm. 

Proper  accounts  of  the  business  of  the  firm  should  always 
be  kept,  and  each  partner  is  entitled  to  access  to  such 
accounts. 

A  firm,  and  all  of  its  members  are  bound  by  the  contracts 
and  acts  of  any  party  within  either  the  actual  or  apparent 
scope  of  the  agency  of  such  partner.  In  general  a  part- 
ner has  the  authority  to  bind  the  firm  by  all  acts  necessary 
for  carrying  on  the  partnership  business  in  the  usual  way. 
The  particular  acts  which  will  fall  under  this  description 
depend  upon  the  nature  of  the  business  in  which  the  part- 
nership is  engaged.  Even  if  a  partner  makes  a  contract  in 
his  own  name,  the  other  members  of  the  firm  are  personally 
bound  thereby  if  such  contract  was  in  reality  made  for  the 
firm.  An  exception  to  this  rule  is  found  in  the  case  of 
sealed  instruments, 

A  firm  is  liable  for  the  torts  of  one  partner,  in  the  course 
of  the  firm's  business,  but  not  for  his  crimes. 

In  a  limited  partnership  the  liability  of  one  or  more  of 
the  partners  is  limited  to  a  certain  maximum  amount, 
while  the  liability  of  the  other  partner,  or  partners,  is  that 
of  an  ordinary  partner  under  common  law  principles. 

Limited  partnerships  are  not  recognized  at  Common  law, 
and  can  only  exist  in  virtue  of  express  statutory  pro- 
visicms.  Statutes  authorizing  limited  partnerships  provide 
for   various   preliminary    steps   of   advertising,    etc.,   to   be 


PARTXERSHIP  27 

taken  in  the  formation  of  siicli  partnerships,  and  a  failure 
to  strictly  follow  such  provisions  Avill  render  the  limited 
partner  liable  as  a  general  partner.  In  most  states  the  con- 
tribution of  the  limited  partner  to  the  firm  must  be  in  actual 
cash. 

Dissolution. 

A  partnership  may  be  dissolved  either  (1)  by  the  terms 
of  the  partnership  agreement,  (2)  by  act  of  parties,  (3)  by 
operation  of  law,  or  (4)  by  decree  of  court. 

A  partnership  is  terminated  according  to  the  terms  of 
the  original  agreement  M'hen  the  time  for  which  it  was 
agreed  that  the  partnership  was  to  continue  has  expired, 
or  the  purpose  for  which  the  partnership  was  created  has 
been  accomplished. 

A  partnership  may  be  dissolved  by  acts  of  the  parties 

(1)  by  a  mutual  agreement  to  this  effect  between  the  parties, 

(2)  by  notice  of  dissolution  given  by  one  partner,  when  no 
special  time  was  agreed  upon  during  which  the  partner- 
ship was  to  continue,  (3)  by  the  transfer  of  the  interest 
of  one  of  the  partners. 

A  partnership  will  be  dissolved  by  operation  of  laAv,  (1) 
by  the  death  of  a  partner,  (2)  by  the  insolvency  or  bank- 
ruptcy of  the  firm  or  of  an  individual  partner.  (3)  by  the 
marriage  of  a  single  woman  who  is  a  partner  (this  is 
changed  in  some  states  by  statute),  or  (4)  by  the  continu- 
ance of  the  partnership  becoming  illegal. 

A  court  of  equity  has  the  power  to  dissolve  a  partner- 
ship in  proper  cases.  Among  the  grounds  for  such  action 
are,  fraud  in  the  formation  of  the  partnership,  insanity  or 
misconduct  of  one  of  the  partners,  and  the  hopelessness  of 
.success  by  the  partnership. 


CHAPTER   IV. 
SALES. 

A  sale  of  personal  property  consists  in  the  transfer  of 
the  legal  title  thereto,  in  return  for  a  money  consideration. 
The  possession  need  not  pass,  although  in  many  states  it 
is  provided,  by  statute,  that  the  title  shall  not  pass  as 
against  third  persons,  unless  there  was  a  transfer  of  pos- 
session, or  unless  such  third  person  had  actual  or  construc- 
tive notice  of  such  sale. 

The  general  principles  of  contract  law  cover  contracts 
of  sale.  In  most  states  the  Statute  of  Frauds  requires  con- 
tracts for  the  sale  of  personal  property,  to  the.  value  of 
fifty  dollars,  to  be  in  writing;  but  the  Statute  of  Frauds  of 
some  states  (including  Illinois)  contains  no  such  provision. 

Either  corporeal  or  incorporeal  personal  property  may 
be  the  subject  of  a  sale.  Among  the  species  of  incorporeal 
personal  property  which  may  be  sold  are  the  good  will 
of  a  business  stock,  promissory  notes,  etc. 

Fructus  industriales  are  personal  property,  and  may  be 
sold  as  such;  but  fructus  naturales,  until  severed  from  the 
soil,  are  considered  real  property.  Property  not  yet  ac- 
quired by  the  vendor,  but  which  he  expects  to  acquire,  may 
be  sold,  and  upon  the  acquisition  of  the  title  by  the  vendor, 
it  will  at  once  pass  to  the  vendee. 

A  somewhat  difficult  question  arises  where  a  person 
agrees  to  furnish  both  the  labor  and  the  materials  for  the 
manufacture  of  some  new  article. 

The  modern  English  cases  hold  that  if  the  contract  when 
completely  carried  out,  will  result  in  the  sale,  of  a  chattel, 
the  contract  is  one  of  sale.  A  few  states  follow  this  Eng- 
lish rule,  but  a  majority  of  the  states  of  this  country  fol- 
low either  what  is  known  as  the  New  York  rule,  or  what  is 
known  as  the  Massachusetts  rule. 

The  New  York  rule  is  that  unless  the  goods  are  already 

28 


bALEti  29 

made  up  and  on  hand,  the  contract  is  not  one  of  sale,  but 
one  for  labor  and  materials. 

The  ]\Iassachusetts  rule  is  midway  between  the  English 
rule  and  the  New  York  rule.  Under  the  laws  of  this  state, 
if  the  goods  to  be  made  are  such  as  are  generally  kept  for 
sale  by  the  person  who  is  to  make  them,  the  contract  is 
one  of  sale;  but  if  such  goods  are  not  ordinarily  kept  for 
sale  by  such  party,  the  contract  is  not  one  of  sale. 

An  unconditional  contract  of  sale  (as  distinguished  from 
a  contract  to  sell)  conveys  to  the  vendee  the  immediate 
right  both  to  title  and  possession.  Unless  there  is  an  agree- 
ment to  give  credit,  however,  there  is  also  the  duty  im- 
posed upon  the  vendee  to  make  immediate  payment,  and  the 
vendor  may  refuse  to  deliver  the  property  until  payment 
is  made  therefor. 

Passing  of  the  Title. 

The  time  when  the  title  to  the  goods  sold,  passes,  is 
primarily  determined  by  the  intention  of  the  parties. 

The  law  presumes  that  the  title  does  not  pass  while  some- 
thing remains  to  be  done  in  order  to  put  the  goods  in  shape 
for  final  delivery.  The  fact  that  the  price  has  not  been 
fixed,  however,  is  not  of  itself,  sufficient  to  prevent  the  title 
from  passing. 

If  the  contract  of  sale  of  certain  property  is  a  conditional 
one,  all  conditions  precedent  must  be  performed  before  the 
title  will  pass ;  but  the  fact  that  the  seller  retains  the  goods 
in  his  possession  for  security  does  not  affect  the  presump- 
tion of  sale. 

The  title  to  goods  to  be  grown  or  manufactured  does  not 
pass  until  the  goods  are  in  condition  for  delivery  to  the 
vendee,  and  have  been  appropriated  by  the  vendor  for  this 
purpose.  ''The  weight  of  authority  is,  that  the  appropria- 
tion by  the  seller  of  the  article  when  completed  in  accord- 
ance with  the  terms  of  the  contract,  passes  the  title  with- 
out the  subsequent  assent  of  the  purchaser,  and  an  action 
for  the  agreed  price  can  be  maintained."  (Colorado 
Springs  Live  Stock  Co.  vs.  Godding,  20  Colo.,  249.) 


30  PLTXEY's    bar    ilXA.MlNATlO.N    REVIEW 

Delivery. 

Unless  there  is  an  agreement  to  the  eontrary,  the  title 
to  the  goods  sold  passes  in  the  place  where  they  are  at  the 
time  of  the  sale,  and  it  is  the  duty  of  the  vendee  to  remove 
them.  If  the  vendor  agrees  to  make  delivery  he  must  de- 
liver the  goods  at  the  place  specified,  or  if  no  place  was 
specified,  then  either  at  the  home  or  place  of  business  of 
the  vendee.  The  question  as  to  whether  delivery  to  a  car- 
rier is  a  deliveiy  by  the  vendor,  depends  upon  whether, 
under  the  terms  of  their  contract,  such  carrier  is  to  be  con- 
sidered as  the  agent  of  the  vendor  or  of  the  vendee. 

If  a  time  is  specified,  within  which  delivery  must  be 
made,  it  must  be  made  before  the  expiration  of  such  period. 
If  no  time  is  specified  it  must  be  made  within  a  reasonable 
time.  The  goods  delivered  must  correspond,  both  as  to 
quantity  and  quality,  with  the  terms  of  the  contract. 

Delivery  (when  required  from  the  vendor)  must  ordi- 
narily be  performed  as  above  stated,  'but  any  action  by  the 
vendee  in  violation  of  the  terras  of  the  contract  will  excuse 
non-delivery  by  the  vendor. 

Acceptance. 
"Wlien  there  is  a  valid  contract  of  sale,  and  a  proper  de- 
livi  ry,  it  is  the  duty  of  the  vendee  to  accept  the  goods.    The 
vendee,  however,  is  excused  from  the  necessity  of  accepting 
the  goods  when  the  vendor  is  in  any  way  at  fault. 

Warranties,   Conditions  and  Representations. 

A  warranty  is  a  collateral  contract  annexed  to  the  main 
contract.  A  breach  of  a  warranty  does  not  afl:'ect  the  valid- 
ity of  the  main  contract,  but  renders  the  party  liable  in 
damages  on  the  collateral  contract. 

A  condition  is  part  of  the  main  contract.  A  breach  of  a 
condition  will  prevent  a  contract  from  taking  effect,  or  will 
terminate  such  contract. 

A  representation  is  a  statement  made  as  an  inducement 
to  a  person  to  make  a  contract.  The  remedy,  if  a  repre- 
sentation is  false,  is  a  suit  ex  delicto  for  deceit. 


SALES  31 

Rights  of  Unpaid  Vendor. 

If  the  goods  ha VI'  been  delivered  and  not  been  paid  for, 
the  vendor  may  sue  for  the  contract  price.  If  the  vendee 
refuses  to  take  the  goods  after  the  contract  of  sale  has  been 
completed,  the  vendor  may  sue  for  the  breach  of  the  con- 
tract ;  the  measure  of  damages  being  the  difference  between 
the  contract  price,  and  what  the  vendor  can  sell  the  goods 
for  to  some  one  else. 

If  the  vendor  has  not  yet  delivered  the  goods,  he  has  a 
lien  on  such  goods  for  the  purchase  price. 

The  right  of  stoppage  in  transitu,  is  an  extension  of  this 
right  of  the  vendor's  lien.  This  right  exists  when  the 
vendor  discovers  the  fact  of  the  insolvency  of  the  vendee, 
while  the  goods  are  in  process  of  transit  to  him. 

Rights  of  Vendee. 

If  the  vendor  refuses  to  deliver  tlie  goods  after  the  mak- 
ing of  the  contract,  the  vendee  may  sue  for  the  breach  of 
the  contract,  the  measure  of  damages  being  the  difference 
between  the  contract  price  and  what  the  vendee  must  pay 
to  secure  similar  goods  elsewhere. 

In  some  cases  the  vendee  may  secure  the  specific  perform- 
ance of  the  contract  through  a  court  of  equity.  (See  Chap- 
ter XIV  on  Equity  Jurisprudence.) 

Uniform  Sales  Act. 

The  first  tentative  draft  of  the  l^niform  Sales  Act  was  pro- 
pared  in  1902-8,  by  Professor  Samuel  AYilliston  of  the  Har- 
vard Law  School,  at  the  requst  of  tlie  Commissioners  of  I'ni- 
form  Laws  in  National  Conference.  The  final  draft  was 
adopted  by  the  Commissioners  of  Uniform  Laws  in  1906. 
This  act  has  to  date,  been  enacted  in  Arizona.  ConnecticuT. 
Massachusetts.  New  Jersey,  Ohio,  and  Rhode  Island.  The 
text  of  the  act  will  be  found  as  Appendix  F  to  this  volume. 


CHAPTER    V. 
BAILMENTS. 

A  bailment  involves  the  separation  of  the  right  of  prop- 
erty and  the  right  of  possession.  It  generally  arises  by  the 
owner  of  personal  property  delivering  such  property  to 
some  party  to  hold  for  a  limited  time  for  some  particular 
purpose ;  but  may  arise  by  the  owner  of  property  trans- 
ferring the  title  to  property  while  still  keeping  its  posses^ 
sion. 

The  modern  law  of  bailments  is  mainly  based  upon  the 
decision  in  the  case  of  Cogg  vs.  Bernard  (2  Ld.  Raymond 
909.) 

The  classification  of  bailments  which  has  growTi  out  of 
this  decision  is  as  follows : 

(1)  Bailments  for  the  sole  benefit  of  the  bailor. 

(2)  Bailments  for  the  sole  benefit  of  the  bailee. 

(3)  Bailments  for  mutual  benefit. 

The  first  class  includes  the  depositum  and  the  mandatum 
of  the  Roman  law  classification.  The  second  class  includes 
the  commodatum  and  the  third  class  the  pignus  and  the 
various  forms  of  the  locatio. 

In  bailments  of  the  first  class  the  bailee  is  only  required 
to  use  a  slight  degree  of  care,  and  is  only  liable  for  gross 
negligence. 

In  bailments  of  the  second  class  the  bailee  is  required  to 
use  the  highest  degree  of  care,  and  is  liable  for  slight 
negligence. 

In  bailments  of  the  third  class  the  bailee  is  required 
to  use  ordinary  care,  and  is  liable  for  ordinary  negligence. 

Anj'  kind  of  personal  property  may  be  the  subject  of  a 
bailment. 

Any  person  having  contractual  power  may  become  a 
bailee. 

Both  bailor  and  bailee  have  a  certain  right  in  the  bailed 

32 


BAILMENTS  33 

property  (the  one  a  general  right  and  the  other  a  special 
right),  and  either  may  bring  an  action  against  any  third 
person  who  injures  the  property.  A  recovery  by  one  will 
be  a  bar  to  a  recovery  by  the  other. 

Inn-Keepers. 

An  inn-keeper,  on  account  of  the  quasi-public  character 
of  his  business,  is  held  to  an  extraordinary  degree  of  bail- 
ment liability. 

The  old  common  law  rule  was  that  an  inn-keeper  was 
liable  as  an  insurer,  for  the  goods  of  his  guest,  against  all 
losses  except  those  occasioned  by  the  act  of  God,  of  the  pub- 
lic enemy,  or  of  the  guest  himself. 

The  inn-keeper  is  now  allowed  to  limit  his  liability  either 
by  contract  with  his  guest,  or  by  general  notice.  For  ex- 
ample, the  inn-keeper  may,  after  giving  proper  notice,  re- 
fuse to  be  liable  for  valuables  which  are  not  given  to  him 
for  safe  keeping.  An  inn-keeper,  however,  cannot  exempt 
himself  from  liability  for  damage  or  loss  occasioned  by  his 
own  negligence  or  that  of  his  servants. 

Common  Carriers. 
A  common  carrier  is  one  who  holds  himself  out  to  the 
public  as  engaged  in  the  business  of  transporting  property. 
A  common  carrier  is  obliged  to  receive  all  goods  offered 
him  for  transportation,  and  not  to  discriminate  between 
different  consignors.  The  following  exceptions  to  this  rule, 
however,  are  to  be  noted:  (1)  A  common  carrier  may  limit 
the  scope  of  his  business  either  as  to  the  places  to  which 
goods  are  carried,  or  the  class  of  goods  carried,  provided, 
that  such  limitations  are  uniformly  enforced. 

(2)  A  common  carrier  is  not  obliged  to  receive  danger- 
ous goods  or  goods  improperly  packed. 

(3)  A  common  carrier  may  demand  payment  for  his 
services  in  advance  and  refuse  to  carry  goods  if  this  de- 
mand is  not  complied  with. 

After  receiving  goods,  a  common  carrier  must  not  dis- 
criminate between  them,  but  should  transport  them  in  the 


34  putney's  bar  examination  review 

order  in  which  they  were  received,  except  that  he  may  give 
preference  to  perishable  goods. 

A  common  carrier  is  an  insurer  of  the  goods  delivered 
to  him,  except  as  to  damages  caused  by  the  act  of  God,  or 
of  public  enemies,  or  occasioned  through  the  fault  of  the 
shipper  himself,  or  because  of  some  inherent  defect  in  the 
goods  themselves. 

A  common  carrier  may  limit  his  liability  by  special  con- 
tract, or  by  public  notice  shown  to  have  come  to  the  notice 
of  the  shipper.  Such  limitations,  however,  cannot  affect  the 
ease  of  damage  occasioned  by  the  negligence  of  the  common 
carrier  or  his  employees.  It  is  held,  by  the  weight  of  au- 
thority, that  the  only  public  notice,  not  called  to  the  notice 
of  the  shipper,  which  will  bind  the  latter,  is  one  to  the 
effect  that  unless  the  true  value  of  all  articles  shipped  is 
declared  at  the  time  of  shipment,  the  carrier  will  be  liable 
only  for  the  apparent  value  of  such  articles. 

The  exceptional  bailment  liability  of  the  common  car- 
rier terminates  when  the  goods  have  reached  their  des- 
tination, and  the  consignee  has  had  a  reasonable  time  in 
which  to  remove  the  goods.  At  the  expiration  of  such 
time  the  common  carrier  becomes,  merely,  a  Avarehouseman, 
and  his  liability  is  that  of  a  bailee  for  mutual  benefit. 

Carriers  of  Passengers. 

The  liability  of  a  carrier  of  passengers  for  injuries  re- 
ceived by  tlie  passengers,  while  being  transported,  is  sub- 
stantially that  of  a  bailee  in  a  bailment  for  mutual  benefit. 

The  liability  of  a  carrier  of  passengers  for  damage  to 
the  l)aggage  of  the  passengers  is  substantially  that  of  a 
'•ornmon  carrier.  A  carrier  of  passengers,  however,  is  only 
r-csponsible  for  loss  of,  or  damage  to,  such  property  as  a  pas- 
senger would  naturally  need  to  use  on  his  journey,  and 
such  carrier  may  also  fix  a  reasonable  maximum  amount 
beyond  which  he  will  not  be  liable  for  such  loss  or  damages. 


CHAPTER    VI. 
BILLS   AND   NOTES. 

"Law  merchant,  lex  inercatoria,  is  a  term  in  use  wherever 
the  English  language  prevails,  to  designate  certain  branches 
of  law  imported  at  diti'erent  times  into  England,  and  ma- 
triculated there,  from  the  Continent  of  Europe,  where  they 
formed  part  of  the  modern  Roman  or  Civil  law.  We  are 
concerned  with  a  branch  Avhich  deals  with  the  law  of  bills, 
notes,  and  cheques.  This  branch  of  the  law  merchant  has 
retained  throughout  its  life,  to  the  present  day  -its  essential 
characteristics,  clearly  marking  it  oft'  from  the  common 
law,  while  other  branches  have  differed  so  little  from  the 
common  law  or  have  become  so  far  assimilated  to  it  that 
the  fact  is  all  but  forgotten  that  they  are  not  of  the  com- 
mon law  stock.  The  result  is  that  the  term  law  merchant 
at  the  presen  time  usually  suggests  the  law  of  bills,  notes, 
and  cheques. 

"The  common  law,  on  the  other  hand,  was  a  native  of 
England,  already  venerable  when  the  law  merchant  crossed 
the  English  Channel.  Before  that  time  the  common  law 
had  defined  and  settled  the  conception  of  contract  for 
England. 

"The  law  mercliant  was  no  part  of  the  law  of  England 
for  generations  after  it  had  followed  trade,  in  a  private 
capacity,  to  the  British  Islands.  Unlike  admiralty  and 
equity,  it  was  for  centuries  a  sort  of  tolerated  outlaw,  liv- 
ing only  as  the  merchants  could  keep  it  alive  in  those  self- 
governing  and  self-supporting  tribunals  of  theirs  called  the 
pie-powder  or  dusty-foot  courts,  and  carrying  out  its  judg- 
ments only  by  pressure  upon  those  who  came  within  its 
extralegal  jurisdiction.  But  it  lived  in  England  as  else- 
where upon  the  vital  principle  of  determined  usage  in 
business,  and  hence  was  not  foredoomed  to  die. 

"The   time   came   when   it   must   take  its   place,   even   if 


36  putney's  bar  examination  review 

piece-meal,  by  the  side  of  the  common  law,  and  of  admi- 
ralty and  equity,  in  the  jurisprudence  of  England.  With 
sound  credentials  in  hand,  it  knocked  for  admission;  and 
it  knocked  at  the  gates,  not  of  its  ancient  kinsmen,  equity 
or  admiralty,  but  of  the  common  law  which  claimed  the 
land."     (Bigelow  on  Bills,  Notes  and  Cheques,  Section  1.) 

The  common  law  courts  gained  jurisdiction  of  cases  of 
this  character  in  the  seventeenth  century,  by  extending  the 
scope  of  the  action  of  assumpsit. 

Negotiability. 

The  most  striking  characteristic  of  bills  and  notes  is  that 
of  negotiability.  This  is  the  principle  under  which  a  bill, 
note  or  check,  may  pass  from  one  person  to  another  in  such 
a  manner  as  to  enable  a  holder  in  due  course  to  take  the 
paper  free  from  all  defences  thereto.  A  holder  in  due 
course,  or  a  bona  fide  holder  for  value,  is  one  who  takes 
the  paper,  for  value,  before  maturity,  without  notice  of  any 
defence  thereto,  or  a  person  who  took  the  paper  from  a 
holder  in  due  course.  The  decisions  of  the  different  states 
are  in  conflict  on  the  subject  as  to  whether  or  not  a  person 
who  takes  a  bill  or  note  in  payment  of  a  pre-existing  debt, 
is  a  holder  in  due  course.  Bills  and  notes  w^ere  not  origi- 
nally negotiable,  and  even  to-day  negotiability  is  not  essen- 
tial to  the  validity  of  a  bill  or  note.  A  bill  or  note  to  be 
negotiable  must  be  made  payable  ''to  order"  or  "to 
bearer." 

Closely  allied  to  this  .subject  of  negotiability  is  the  prin- 
ciple that  a  consideration  is  implied  in  the  case  of  all  nego- 
tiable paper.  Between  the  immediate  parties  to  the  con- 
tract the  lack  of  consideration  can  always  be  shown  but 
not  where  the  rights  of  a  bona  fide  holder  for  value  in- 
tervene. 

No  bill  or  note  can  be  held  to  possess  the  peculiar  char- 
acteristics of  such  instruments,  unless  its  terms  are  abso- 
lutely certain  in  all  respects.  There  must  be  no  condi- 
tional or  optional  provisions.  It  is  sufficient  if  certainty 
can  be  attained  from  a  study  of  the  face  of  the  instrument. 


BILLS    AND    VOTES  37 

Thus  it  is  not  necessary  that  the  amount  of  the  bill  or  note 
should  be  set  out,  if  the  instrument  contains  data  from 
which  it  may  be  determined.  It  is  not  sufficient,  however, 
that  it  will  be  possible  to  determine  the  amount  of  such  bill 
or  note  at  the  time  of  its  maturity. 

A  bill  or  note  must  be  payable  in  money.  In  a  few 
states  this  was  changed  by  statute,  but  the  Uniform  Nego- 
tiable Instrument  Act  has  gone  back  to  the  old  rule. 

Delivery  is  necessary  to  the  validity  of  a  ])ill  or  note. 
Delivery  may  be  either:  (1)  by  intention,  (2)  by  agency, 
or  (3)  by  negligence.  The  defendant  may  also  become 
estopped  to  deny  delivery. 

Days  of  Grace. 
Days  of  grace  are  three  additional  days  given  to  the 
party  primarily  liable  on  a  negotiable  instrument  within 
which  to  make  payment.  Daj^s  of  grace  were  at  first  only 
granted  to  the  drawer  of  a  foreign  bill  of  exchange,  but 
were  later  extended  to  other  parties  liable  upon  negotiable 
paper.  Recently  days  of  grace  began  to  be  abolished,  or 
restricted,  in  their  application,  by  statute,  and  they  are  not 
allowed  under  the  Uniform  Negotiable  Instrument  Act. 

Acceptance  of  Bills  of  Exchange. 

The  acceptance  of  a  bill  of  exchange  is  an  agreement 
generally  on  the  part  of  the  drawee,  but  sometimes  on  the 
part  of  some  other  party  to  pay  the  bill  absolutely  accord- 
ing to  its  tenor,  or  according  to  special  terms  contained  in 
the  contract  of  acceptance.  The  holder  of  a  bill  has  the 
right  to  demand  a  general  and  unqualified  acceptance  in 
writing  upon  the  bill  itself,  and  may  refuse  to  accept  any 
qualified  acceptance. 

The  drawee  of  a  bill  of  exchange  is  under  no  legal  obli- 
gation to  accept  a  bill,  even  if  he  has  funds  of  the  drawer 
in  his  possession,  unless  he  has  agreed,  for  a  valuable  con- 
sideration, to  accept  such  bill.  Such  agreement  to  accept 
may  be  either  express  or  implied.  Even  in  ease  of  such  an 
agreement,  the  payee  has  no  right  against  the  drawee  until 


38  putxky's   HAR   KXAMIXATIOX   kemkw 

acceptance  has  actually  been  made.  When  the  drawee  has 
agreed  to  accept  a  bill  he  is  liable  to  the  drawer,  if  he  fails 
to  accept,  in  damages  for  the  breach  of  his  contract,  the 
measure  of  damage  being  the  inconvenience  and  loss  caused 
to  the  drawer  by  the  drawee's  failure  to  accept. 

When  a  bill  has  been  accepted  the  acceptor  becomes  the 
primary  debtor,  while  the  drawer  is  only  secondarily  liable 
for  the  payment  of  the  bill. 

The  drawee  of  a  bill,  by  accepting  it,  admits  everything 
essential  to  the  validity  of  a  bill,  including  the  existence 
of  the  drawer,  the  genuineness  of  the  signatures,  the  in- 
violacy  of  the  body  of  the  bill,  the  capacity  of  the  parties, 
the  authority  of  the  parties,  and  that  there  were  funds  of 
the  drawer  in  the  hands  of  the  acceptor.  None  of  the  facts 
thus  admitted  can  be  disputed  in  a  suit  by  a  bona  fide 
holder  for  value,  but  as  between  the  immediate  parties  to  the 
instrument  the  true  state  of  facts  can  lie  shown. 

Acceptance  can  ordinarily  only  1)e  made  by,  or  in  the 
name  of,  the  person  upon  whom  it  is  drawn.  If  a  bill  is 
drawn  upon  two  or  more  persons,  it  may  be  accepted  by 
either  of  them. 

Where  the  acceptance,  or  payment  of  a  l)ill  has  been 
refused,  or  neglected,  any  person  may  accept  it  supra  pro- 
test, or  for  the  honor  of,  any  person  whose  name  appears 
upon  the  bill.  In  such  a  case,  if  the  acceptor  supra  protest, 
pays  the  bill,  he  can  recover  on  the  ])ill.  This  is  one  of  the 
very  few  cases  where  a  person,  solely  by  his  own  act,  may 
make  himself  a  creditor  of  another  person. 

An  express  acceptance  may  be  cither  orally  or  in  writing. 
No  particular  words  arc  i-cquired  to  m;il\c  an  acceptance. 
Such  words  as  ''Seen,"  "Presented."'  or  simply  the  name 
of  the  drawee  written  upon  the  face  of  the  bill,  are  suffi- 
cient. An  acceptance  on  another  piece  of  paper,  however, 
must  be  full  and  unequivocal. 

An  acceptance  may  be  either  absolute  or  (|ualified,  but 
the  holder  of  a  liill  may  refuse  to  accept  a  qualified  ac- 
ceptance. 

A  bill  may  be  accepted  before  it  is  drawn,  or  after  its 
maturity.     A   bill   may  also  be  accepted   by  implication. 


BILLS    AND    NUTES  39 

''Indorsement  is  an  act  wliereby  a  person,  not  being  ac- 
ceptor or  quasi-acceptor,  surety  or  guarantor  proper,  writes 
his  name  upon  the  back  or  face  of  a  duly  executed,  nego- 
tiable bill  of  exchange,  promissoi'y  note,  or  cheque,  with 
or  without  terms  of  contract  or  liability,  according  to  the 
law  merchant,  or  writes  an  equivalent  contract  on  a  sepa- 
rate paper,  annexed  to  the  bill,  note  or  cheque ;  to  which 
act  the  drawing  of  a  bill  of  exchange  is,  for  the  purpose 
new  in  hand,  an  equivalent."  (Bigelow  on  Bills  and  Notes, 
Chapter  VllI,  Section  1.) 

If  the  indorser  of  a  bill  or  note  is  the  holder  thereof,  the 
contract  which  he  makes  is  a  double  one :  there  is  first  an 
executed  contract  transferring  the  title  and  right  to  the  bill 
or  note,  and,  second,  the  collateral  executory  contract  guar- 
anteeing that  the  I)ill  or  note  will  be  paid  at  maturity. 

If  the  indorser  has  no  interest  in  the  bill  or  note,  he  is 
called  an  anomalous  indorser,  and  becomes  practically  a 
guarantor. 

There  are  a  number  of  different  methods  of  indorsement. 

An  indorsement  in  blank  consists  merely  of  the  signature 
of  indorser.  The  bill  or  note,  with  such  an  indorsement,  is 
payable  to  the  holder,  and  may  be  transferred  indefinitely 
without  any  further  indorsement. 

An  indorsement  in  full  is  one  containing  the  name  of  the 
new  payee.  The  papei"  can  only  be  transferred  again  by  a 
further  indorsement. 

An  indorsement  "without  recourse"  is  one  where  the 
holder  transfers  a  bill  or  note  without  guaranteeing  its  pay- 
ment at  maturity.  Such  an  indorser,  however,  guarantees 
the  genuineness  of  the  signature  to  the  paper. 

A  restrictive  indorsement  may  be  one,  either. 

(1)  for  collection,  or 

(2)  to  be  held  by  the  payee  in  trust,  or. 

{'.])     which  prohibits  further  indorsement  of  the  paper. 

Presentment. 
Presentment  and  protest  are  the  steps  necessary  to  charge 
the  parties  who  are  secondarily  liable  on  a  bill  or  note. 
Tn  the  case  of  a  bill  of  exchange  there  must  be  two  pi-(^- 


40  putney's  bar  examination  review 

sentmeuts,  one  for  acceptance  and  one  for  payment.  If, 
however,  presentment  for  acceptance  is  delayed  until  the 
day  of  the  maturity  of  the  bill  the  two  presentments  are 
merged  together,  as  is  also  the  case  when  the  bill  is  pay- 
able on  demand.  Only  one  presentment  is  necessary  in  the 
case  of  a  promissory  note — that  for  payment. 

Presentment  must  be  made  by  the  holder,  or  his  author- 
ized agent,  to  the  drawee,  or  his  authorized  agent,  A  bill 
upon  a  partnership  may  be  presented  to  any  of  the  part- 
ners, but  a  bill  drawn  upon  several  persons,  not  partners, 
must  be  presented  to  each. 

Presentment  should  be  made  at  the  regular  place  of  busi- 
ness of  the  drawee,  or  if  he  has  no  regular  place  of  business, 
at  his  domicile.  Presentment  should  be  made  during  rea- 
sonable business  hours;  but  the  hour  of  presentment  is  im- 
portant only  when  no  answer  is  received. 

If  the  acceptor  of  a  bill  or  the  maker  of  a  note  is  dead, 
presentment  should  be  made  at  the  place  where  the  bill  or 
note  is  payable,  or  if  not  payable  at  any  specific  place,  then 
at  the  last  domicile  of  the  deceased. 

Failure  to  present  a  bill  or  note  for  payment,  at  the 
proper  place,  upon  its  maturity  will  relase  the  parties  sec- 
ondarily liable  upon  the  paper,  but  will  not  affect  the  liabil- 
ity of  persons  primarily  liable,  except,  under  certain  cir- 
cumstances, as  to  further  interest. 

If  presentment  has  been  made  and  the  paper  dishonored 
it  is  the  duty  of  the  holder  of  the  paper  to  give  notice  of 
such  dishonor  to  all  the  parties  secondarily  liable  on  such 
paper.  Failure  to  do  this  will  relieve  the  parties  secondarily 
liable,  from  liability. 

Where  the  parties  secondarily  liable  live  in  the  same  place 
as  the  holder,  he  may  notify  them  of  the  dishonor  either 
orally  or  in  writing.  Persons  living  elsewhere  must  be 
notified  in  writing.  Notice  must  be  given  or  sent  within 
twenty-four  hours.  The  notice  must  contain  a  statement 
that  the  bill  or  note  has  been  dishonored,  and  that  the 
holder  of  the  paper  looks  upon  the  party  receiving  the 
notice  for  payment. 


EILLS   AND    NOTES  41 

Presentment,  protest  or  notice,  may  be  waived  by  the 
party  who  would  be  charged  by  such  acts;  waiver  by 
drawee,  acceptor,  or  maker  is  not  sufficient. 

Presentment,  demand  and  notice  may  also  be  excused  by 
war,  riots,  or  anything  which  causes  a  complete  cessation 
of  business,  or  by  death  or  extreme  illness.  In  such  cases, 
however,  the  proper  steps  must  be  taken  as  soon  as  possible. 

An  indorser  who  indorses  a  void  note  does  not  escape 
liability  through  the  failure  of  presentment,  demand,  or 
notice. 

Protest. 

"A  foreign  bill  of  exchange  that  has  been  dishonored 
must  be  regularly  protested  as  a  preliminary  to  the  sending 
out  of  the  notice  of  dishonor ,  therefore  its  presentment  must 
be  made  by  one  who  is  a  notary  public,  as  the  certificate  of 
the  protest  of  the  notary  is  recognized  as  satisfactory  proof 
of  the  statements  that  the  certificate  should  properly  con- 
tain, and  the  act  of  the  notary  in  so  acting  is  universally 
recognized.  Where  a  foreign  note  has  been  indorsed,  the 
protest  of  the  note  by  a  notary  is  necessary,  according  to 
the  weight  of  authority.  An  inland  bill  or  note,  unindorsed, 
need  not  be  protested  by  a  notary,  but  the  statutes,  how- 
ever, permit  the  notary  public  to  protest  the  inland  bill 
and  note,  after  the  same  fashion  as  in  writing  up  his  cer- 
tificate of  protest  on  a  foreign  bill.  It  is  a  common  custom, 
therefore,  of  banks  and  other  handlers  of  negotiable  paper 
to  employ  a  notary  public  as  their  agent  to  act  in  the  par- 
ticular of  presenting  negotiable  paper  and  where  it  is  dis- 
honored of  protesting  and  sending  out  the  notice  of  dis- 
honor to  persons  secondarily  liable.  The  employment  of 
a  notary  in  such  a  case,  while  sanctioned,  is  not  made 
necessary;  it  is  done  as  a  matter  of  convenience.  Nor  is  it 
necessary  that  the  notice  of  dishonor  be  sent  out  by  the 
notary,  although  this  is  customarily  a  part  of  the  duties 
of  his  office  by  the  private  arrangement  of  his  employers. 
The  notary's  certificate  contains  his  declaration  in  formal 
language,  usually,  and  under  a  written  copy  of  the  note  or 
bill  in  question  stating  that  he  has  made  presentment  and 


42  putney's  bar  examination  review 

tlemand  of  payment,  and  that  the  payment  has  been  re- 
fused, together  with  the  reasons  for  the  refusal,  time,  and  the 
fact  that  he  therefore  protests  the  paper.  The  notary  then 
attaches  his  seal  of  office  to  the  certificate  of  protest  and 
signs  the  same.  The  main  purpose  served  by  the  certificate 
is  to  afford  the  holder  the  legal  testimony  on  the  facts  prop- 
erly contained  therein,  in  an  action  on  the  paper  against 
those  secondarily  liable."     (S.  B.  Neltnor  in  Law  Library.) 

Defences  to  Bills  and  Notes. 

Defences  to  bills  and  notes  are  either, 

1.  real,  or 

2.  personal. 

Real  defences  include  the  cases  of  the  incapacity  of  the 
maker  of  the  instrument,  forged  signatures,  and  of  bills 
and  notes  declared  void  by  statute. 

Among  the  personal  defences  are  those  of  fraud,  failure 
of  consideration  and  payment. 

The  Uniform  Negotiable  Instrument  Act. 

The  Uniform  Negotiable  Instrument  Act  is  an  act,  mainly 
bf-.sed  upon  the  English  Bills  of  Exchange  Act  which  has 
now  been  adopted  in  the  great  majority  of  the  states  of  this 
country.  The  text  of  this  act  will  be  found  in  full  in 
i-ppendix  D  to  this  volume. 


CHAPTER   VII. 
GUARANTY    AND    SURETYSHIP. 

Contracts,  both  of  guaranty  and  of  suretyship,  are  agree- 
ments to  answer  for  the  debt  or  promise  of  some  other 
person.  I'here  is  a  distinction,  however,  between  these  two 
species  of  contracts. 

A  surety,  in  general,  is  a  party  to  the  original  contract 
of  the  principal,  and  the  consideration  for  the  contract  of 
the  principal  is  also  the  consideration  for  the  contract  of 
the  surety.  The  surety,  therefore,  is  not  entitled  to  notice 
from  the  obligee  of  the  contract,  of  any  default  on  the  part 
of  the  principal  debtor,  and  is  not  relieved  from  liability 
on  account  of  the  failure  of  the  obligee  to  give  such  notice. 
The  contract  of  a  surety  is  primary  and  direct. 

The  promise  of  a  guarantor  is  generally  made  at  a  dif- 
ferent time  and  by  a  different  instrument  than  that  of  the 
principal.  The  guarantor  is  only  liable  after  the  default  of 
the  principal;  he  is  entitled  to  notice  of  such  default,  and 
is  released  from  liability  if  such  notice  is  not  given  him 
by  the  principal  creditor.  In  case  of  a  conditional  guar- 
anty there  must  be  both  a  default  by  the  principal  and  a 
fulfillment  of  the  contract  by  the  creditor  to  fix  the  liabil- 
ity. The  contract  of  a  guarantor  is  both  collateral  and 
secondary. 

Formation   and   Requisites    of    Contract   of    Guaranty   or 

Suretyship. 

A  contract  of  guaranty  or  suretyship  must  possess  all 
the  requisites  of  an  ordinary  contract.  As  in  all  contracts 
there  must  be  a  consideration,  but  the  consideration  need 
not  take  the  form  of  a  benefit  to  the  guarantor  or  surety. 
A  detriment  to  the  promisee  is  sufficient.  If  the  contract  of 
the  guarantor  or  surety  is  made  at  the  same  time  as  that 
of  the  principal  no  additional  consideration  is  necessary  to 

43 


44  putney's  bar  examination  review 

support  the  promise  of  such  guarantor  or  surety.  If,  how- 
ever, the  contract  of  the  guarantor  or  surety,  is  made  at 
a  later  time,  an  additional  consideration  is  necessary.  Con- 
tracts, either  of  guaranty,  or  of  suretyship,  are  required  by 
the  Statute  of  Frauds,  to  be  in  writing.  In  general,  anyone 
with  the  general  power  to  contract  may  become  either  a 
surety  or  guarantor.  In  some  states  where  married  women 
have  been  given  the  general  power  to  contract,  an  excep- 
tion has  been  made  as  to  these  classes  of  contracts. 

Classification  of  Suretyship. 

Suretyship  may  be  either  voluntary  or  involuntary. 
Where  the  chief  object  of  the  contract  was  to  create  the 
relation  of  suretyship,  the  suretyship  is  a  voluntary  one; 
where  the  primary  object  of  the  contract  was  to  accomplish 
some  other  purpose,  but  which  indirectly  involves  the  crea- 
tion of  this  relation,  the  suretyship  is  classed  as  an  involun- 
tary one. 

Suretyships  are  also  either  personal  or  real.  In  a  personal 
suretyship  the  surety  is  personally  liable  for  the  debt;  in 
the  case  of  a  real  suretyship  certain  property  is  put  up  by 
the  surety,  but  the  surety  can  not  be  personally  sued  on 
the  debt. 

Classification  of  Guaranties. 

Guaranties  are  classified  along  several  different  lines  of 
demarkation. 

The  first  classification  is  that  into  continuing  or  open,  and 
non-continuing  or  limited  guaranties.  A  continuing  guar- 
anty covers  a  succession  of  dealings  or  an  indefinite  time, 
while  a  non-continuing  or  limited  guaranty  only  relates  to  a 
single  transaction. 

Guaranties  are  also  divided  into  : 

General  and  special  guaranties; 

Commercial  and  non-commercial  guaranties;  and 

Revocable  and  irrevocable  guaranties. 


GUARANTY    AND   SURETYSHIP  45 

Liabilities  and  Rights  of  Surety. 

''The  principles  of  law  and  statutory  provisions  govern- 
ing the  liability  of  obligors  on  joint,  and  joint  and  several 
obligators,  apply  to  sue  a  as  are  executed  by  sureties.  While 
a  court  of  equity,  in  the  case  of  principals,  will  ordinarily 
presume  that  a  contract,  in  form  joint,  was  intended  to  be 
joint  and  several,  in  the  case  of  a  surety,  nothing  will  be 
presumed  beyond  what  the  positive  facts  substantiate,  and 
if  the  contract  is  in  form  joint,  it  will  not  be  presumed  to 
have  been  joint  and  several  unless  upon  distinct  and  satis- 
factory proofs  to  that  effect."  (Amer.  and  Eng.  Ency.  of 
Law,  Vol.  XXVII,  p.  452.) 

The  principal  defences  which  may  be  set  up  by  a  surety 
are  as  follows: 

(1)  Any  material  alteration  of  the  principal  contract. 
Here  would  be  included  such  changes  as  the  addition  of 
new  parties,  a  change  in  the  duties  of  the  principal,  an 
extension  of  credit,  etc.  It  is  even  held  that  an  alteration 
of  the  principal  contract  will  release  the  surety  from  lia- 
bility, when  such  alteration  is  beneficial  to  the  surety.  This 
is  on  the  ground  that  no  person  can  be  bound  to  accept  a 
new  contract,  even  a  beneficial  one,  against  his  will. 

(2)  Any  change  in  the  relation  between  the  principal 
and  the  creditor,  which,  although  without  any  change  of 
contract,  increases  the  liability  of  the  principal,  will  release 
the  surety.  An  illustration  of  this  is  found  in  the  case 
where  an  increase  in  the  capital  stock  of  a  bank  was  held 
to  release  the  surety  of  the  cashier. 

(3)  An  agreement  made  for  a  consideration  to  extend 
the  time  of  payment,  for  some  definite  period,  to  the  prin- 
cipal, releases  the  surety.  Payment  of  interest  in  advance 
will  constitute  a  sufficient  consideration.  A  contract  to 
extend  the  time  of  payment,  however,  will  not  be  implied 
from  the  creditors  accepting  collateral  securities  maturing 
at  a  later  time. 

An  extension  of  time  to  one  co-surety  will  release  another 
co-surety,  to  the  extent  of  the  contributory  share  of  the 
surety  release. 


46  putney's    bar    EXAMIXATIOX    REVIEW 

By  the  weight  of  authority,  a  surety  is  discharged  by 
an  agreement  made  by  the  creditor  not  to  sue  the  principal 
debtor  for  a  certain  time.  .Mere  delay,  on  the  part  of  the 
creditor,  in  suing  the  principal,  will  not  relieve  tiie  surety. 

(4)  If  the  creditor  releases  securities  furnished  by  the 
principal  debtor,  or  is  negligent  in  reducing  them  into  pos- 
session, the  surety  is  released  pro  tanto. 

(5)  Any  cause  which  will  be  sufficient  for  the  annulment 
of  the  principal  contract,  Avill  l)e  sufficient  to  annul  the  con- 
tract of  the  surety. 

(6)  Any  fraud  on  the  part  of  the  creditor,  which  affects 
the  making  of  the  contract  of  the  surety,  will  release  the 
surety.  Fraud  on  the  part  of  the  principal,  unknown  to  the 
creditor,  will  not  release  the  surety. 

(7)  Where  the  contract  of  suretyship  is  executory,  it 
is  not  binding  upon  the  surety  until  it  has  been  acted  upon 
by  the  creditor,  and  until  that  time  can  be  revoked  by  the 
surety. 

Ordinarily  the  fact  that  a  contract  of  suretyship  absolute 
on  its  face  was  in  fact  conditional,  cannot  be  shown  ])y 
parol.  A  failure  of  consideration,  however,  may  be  shown 
by  parol. 

The  rights  of  a  surety  under  the  principles  of  subroga- 
tion, exoneration  and  contribution  are  discussed  under  the 
chapter  on   Equity   Jurisprudence. 

Liabilities  and  Rights  of  Guarantors. 
"The  principal  field  of  this  branch  of  suretyship  is  that 
of  sales  wherein  letters  of  credit  or  guaranty  constitute 
the  inducement  for  the  owner  of  merchandise  to  part  with 
his  possession  and  ownersliip  to  another.  It  also  includes 
transactions  whereliy  credit  is  obtained  for  the  maker  of 
negotiable  papei-.  This  class  of  mercantile  instruments  are 
useful  and  imp)ii;int  mediums  of  commercial  intercourse 
and  a  spirit  of  liberality  pervades  the  law  of  this  subject 
to  the  end  that  these  convenient  aids  of  commerce  may  not, 
by  reason  of  strict  and  technical  constructions,  become  ob- 
stneles  and  hindrances  to  business  transactions  rather  than 
a  benefit. 


GUAllANTY    AXU    SURETYSHIP  47 

"Letters  of  ei-edit  are  frequently  executed  without  tlie 
aid  of  legal  counsel,  and  the  extent  to  which  the  guarantor 
is  l>()Uiul  or  the  seller  protected  is  many  times  not  easily 
determined  from  the  language  employed. 

"These  contracts  also  often  lack  the  evidences  of  delib- 
eration which  characterize  some  other  forms  of  suretyship, 
such  as  bonds  or  covenants  under  seal,  and  are  frequently 
interspersed  with  signs  and  trade  expressions  which  can 
be  interpreted  only  by  careful  attention  to  the  circum- 
stances under  which  the  transaction  arises."  (Stearns  on 
Suretyship,  Par.  48.) 

A  guaranty  may  be  either  general  or  special.  A  general 
guaranty  is  one  addressed  to  all  persons,  or  to  whom  it 
may  concern,  and  may  be  enforced  by  any  person  who  acts 
upon  it. 

jVs  before  stated,  a  contract  of  guaranty  is  a  collateral 
contract.  No  privity  of  contract  is  necessary  between  prin- 
cipal and  guarantor.  There  may  be  a  binding  contract  ofc" 
guaranty  without  the  knowledge  of  the  principal  debtor. 

"If  the  liability  of  the  promisor  is  fixed  by  the  mere 
default  of  the  principal  it  is  an  absolute  guaranty  but  if 
the  promissor's  liability  depends  upon  any  other  event  than 
the  non-performance  of  the  principal  it  is  a  conditional 
guaranty. 

"Contracts  of  guaranty  endorsed  upon  promissory  notes 
are  the  most  common  forms  of  absolute  guaranty.  The  time 
and  amount  of  payment  are  fixed,  and  the  liability  of  the 
guarantor  depends  upon  no  other  condition  than  that  of 
non-payment  by  the  maker.  If  the  guaranty  is  absolute  the 
holder  is  not  required  to  make  demand  upon  the  maker 
and  give  notice  to  the  guarantor  of  the  default. 

"It  is  not  necessary  to  first  pursue  and  exhaust  the  prin- 
cipal before  proceeding  against  the  guarantor  in  cases 
where  the  guaranty  is  absolute. 

"Where  credit  is  extended  for  a  definite  amount,  and 
for  a  definite  time,  no  condition  is  imposed  other  than  the 
default  of  the  debtor,  and  the  liability  is  absolute,  whether 
the  transaction  is  a  sale  or  whether  it  arises  in  the  course 
of  the  negotiation  of  a  bill  or  note. 


48  putney's  bar  examination  review 

"A  guaranty  of  a  debt  upon  the  consideration  of  an  ex- 
tension of  time  to  the  debtor  places  the  transaction  upon 
the  same  basis  as  an  absolute  guaranty  of  a  note.  In  either 
case  it  is  a  guaranty  of  payment  at  maturity.  The  guar- 
antor has  the  means  of  knowing  in  advance  the  exact 
amount  of  his  contingent  liability,  and  the  exact  time  it  will 
fall  due,  and  no  conditions  of  demand  and  notice  enter  into 
such  contract."     (Stearns  on  Suretyship,  Par.  61.) 

There  must  be  a  consideration  for  the  contract  of  guar- 
anty, and  unless  the  guaranty  is  made  at  the  same  time  as 
the  principal  contract,  the  consideration  for  this  collateral 
contract  must  be  distinct  from  the  consideration  for  the 
original  contract. 


CHAPTER   VIII. 
INSURANCE. 

"Insurance  is  a  conditional  contract,  whereby  one  party 
undertakes  to  indemnify  another  against  loss,  damage,  or 
liability  arising  from  some  specified  but  contingent  event." 
(Vance  on  Insurance,  p.  1.) 

A  contract  of  insurance,  Avhile  on  its  face  a  wagering 
contract,  is  in  its  effect  the  exact  opposite  of  this,  being 
entered  into  for  the  purpose  of  doing  away  with  the  chance 
of  severe  loss,  by  dividing  the  loss  which  would  otherwise 
fall  upon  a  few,  among  a  large  number. 

The  oldest  form  of  insurance  is  that  of  marine  insurance. 
The  other  two  most  important  forms  of  insurance  are  life 
insurance,  and  fire  insurance. 

Insurable  Interest. 

No  person  can  recover  on  an  insurance  policy  either  on 
a  life,  or  on  property,  unless  such  person  had  an  insurable 
interest  in  the  life  or  property  insured. 

Tn  the  case  of  property  insurance  (either  marine  or  fire) 
the  insurable  interest  must  exist  at  the  time  of  the  loss, 
but  need  not  have  existed  at  the  time  the  contract  of  insur- 
ance was  made.  In  the  case  of  life  insurance,  the  pxact 
opposite  is  the  rule:  the  insurable  interest  must  exist  at 
the  time  the  contract  of  insurance  was  made,  but  need  not 
necessarily  exist  at  the  time  of  the  death  of  the  party  in- 
sured. Any  person  can  insure  his  own  life  to  any  amount 
he  may  choos?,  and  may  make  any  person  the  beneficiary. 

Premiums. 

Premiums  are  the  present  payments  made  by  the  insured 
as  consideration  for  the  contingent  future  payment  by  the 
insurer. 

The  non-payment  of  a  premium  will  terminate  the  rights 

49 


50  putney's  bar  examination  review 

of  the  insured  under  the  policy,  unless  credit  is  given  or 
unless  there  is  a  valid  excuse  for  non-payment  by  the  in- 
sured. The  principal  recognized  excuses  are :  insolvency 
of  the  insurer ;  refusal  of  tendered  premium ;  some  wrongful 
act  of  insurer  preventing  payment;  waiver  of  prompt  pay- 
ment; war  in  some  jurisdiction;  and,  want  of  notice  when 
it  is  the  duty  of  the  insurer  to  give  notice.  Except  where 
required  by  statute,  the  insurer  is  not  required  to  give 
notice  of  premiums  falling  due. 

In  Mutual  Benefit  Associations,  dues  and  assessments  take 
the  place  of  premiums. 

Warranties  and  Representations. 

In  the  contract  of  insurance  the  highest  degree  of  good 
faith  is  required  from  both  parties.  It  is  the  duty  of  the 
insured  to  inform  the  insurer  of  all  the  facts  material  to  the 
risk  which  the  insurer  assumes.  Failure  to  disclose  such 
facts  constitutes  a  misrepresentation  by  concealment. 

It  is  generally  held  that  a  misrepresentation  will  not 
render  an  insurance  policy  void  unless  it  is  material,  but 
that  a  breach  of  warranty  on  the  part  of  the  insured  will 
render  the  policy  void,  whether  the  warranty  is  material 
or  not.  In  some  states,  however,  it  is  provided  by  statute 
that  a  policy  shall  not  be  forfeited  by  a  breach  of  warranty, 
unless  such  warranty  was  material. 

Waivers  and  Estoppels. 

A  waiver  arises  in  insurance  where  the  insurer  volun- 
tarily and  expressly  waives  a  known  right. 

Estoppels  in  insurance  are  governed  by  the  general  law 
on  the  subject. 

Insurance  Agents. 

Insurance  agents  are  always  the  agent  of  the  insurance 
company ;  and  the  insurance  company  cannot  make  them  the 
agent  of  the  insured  by  any  wording  of  the  contract  which 
may  be  adopted. 


CHAPTER    IX. 
CRIMINAL    LAW. 

A  crime  is  a  wrong  against  the  public.  Crimes  are  de- 
fined, and  their  punishments  fixed,  both  by  the  common 
law,  and  by  statutory  law.  Criminal  law  in  this  country 
is  mainly  regulated  by  statute.  In  some  states,  only  stat- 
utory crimes  are  recognized.  In  other  states  a  common  law 
crime  may  serve  as  the  basis  of  an  indictment. 

Both  the  Federal  and  Slate  Courts  have  criminal  juris- 
diction in  this  country.  The  criminal  jurisdiction  of  the 
Federal  Courts  is  limited  by  the  grants  in  the  United  States 
Constitution. 

Every  crime  must  contain  the  element  of  wrong  to  the 
public.  Generally  there  must  be  both  a  criminal  act  and  a 
criminal  intent,  but  the  criminal  intent  is  not  always  neces- 
sary to  the  existence  of  the  crime. 

"Moral  obliquity  is  not  an  essential  element  of  crime,  ex- 
cept so  far  as  it  may  be  involved  in  the  very  fact  of  the 
violation  of  law.  What,  therefore,  is  criminal  in  one  juris- 
diction may  not  be  criminal  in  another;  and  what  may  be 
criminal  at  a  particular  period  is  often  found  not  to  have 
been  criminal  at  a  different  period  in  the  same  jurisdiction. 
The  general  opinion  of  society,  finding  expression  through, 
the  common  law  or  through  special  statutes,  makes  an  act 
to  be  criminal  or  not  according  to  the  view  which  it  takes 
of  the  proper  means  of  preserving  order  and  promoting  jus- 
tice. Adultery  is  a  crime  in  some  jurisdictions,  while  in 
others  it  is  left  within  the  domain  of  morals.  Embezzle- 
ment, which  was  till  within  a  comparatively  recent  period  a 
mere  breach  of  trust,  cognizable  only  by  the  civil  courts, 
has  been  nearly,  if  not  quite,  universally  brought  by  statute 
into  the  category  of  crimes  as  a  modified  larceny.  The  sale 
of  intoxicating  liquors  is  or  is  not  a  crime,  according  to  the 

51 


52  putney's  bar  exaaunation  review 

ditiering    views   of   public    policy    entertained   by    different 
communities."     (May  on  Criminal  Law,  Sec.  7.) 

Parties  to  Crimes. 

A  person  to  be  guilty  of  a  crime  must  have  both  mental 
and  physical  capacity.  A  child  under  the  age  of  seven 
years  is  conclusively  held  to  be  incapable  of  committing  a 
crime.  A  child  between  the  ages  of  seven  and  fourteen 
years  is  presumed  to  be  incapable,  but  in  this  case  the  pre- 
sumption may  be  rebutted  by  the  prosecution.  A  child  above 
the  age  of  fourteen  is  presumed  to  have  the  mental  capacity 
necessary  to  be  guilty  of  a  crime.  A  boy  under  the  age  of 
fourteen  is  conclusiAely  presumed  to  lack  the  physical  ca- 
l>acity  to  commit  the  crime  of  rape. 

A  married  woman  is  prima  facie  held  to  be  acting  under 
the  coercion  of  her  husl)and,  when  she  commits  a  crime  in 
his  presence,  and  not  to  be  herself  guilty  of  such  crime  un- 
der such  circumstances.  The  woman  is  not  herself  exempt, 
however,  in  cases  of  treason,  murder  and,  perhaps,  some 
other  crimes. 

An  insane  person  cannot  be  held  capable  of  committing 
a  crime.  The  test  of  insanity,  generally  in  criminal  cases, 
is  as  follows :  If  the  offender  has  sufficient  mental  capacity 
to  know  that  the  act  which  he  is  about  to  commit  is  wrong 
and  deserves  punishment,  and  to  apply  that  knowledge  at 
the  time  when  the  act  is  committed,  he  is  not  in  the  eye  of 
the  criminal  law  insane,  but  is  responsible.  "Irresistible 
impulse"  and  "emotional  insanity,"  while  they  have  been 
recognized  as  good  defenses  by  some  courts,  are  very  dan- 
gerous theories. 

In  some  states  it  is  held  that  on  the  question  of  a  defend- 
ant's sanity,  the  burden  of  proof  is  on  the  prosecution,  while 
in  other  states  the  opposite  rule  prevails. 

Drunkenness  is  never  a  defense  to  a  criminal  prosecution, 
but  delirium  tremens  may  be. 

Criminals  are  divided  into  principals  and  accessories. 
Principals  are  subdi^•ided  into  those  in  the  first  degree  and 
those  in  the  second  degree. 


CRIMINAL    LAW  53 

A  principal  in  the  first  degree  is  tlie  actual  perpetrator  of 
the  crime.  A  principal  in  the  second  degree  is  one  who  is 
present  at  the  time  the  act  was  committed,  aiding  and  abet- 
ting in  such  commission. 

Accessories  are  subdivided  into  accessories  before  the  fact, 
and  accessories  after  the  fact.  An  accessory  before  the  fact 
is  one  who  procures,  counsels,  or  commands  another  to  com- 
mit a  crime,  but  who  is  not  himself  present  at  the  time  the 
act  is  committed. 

An  accessory  after  the  fact  is  a  person,  who  knowing  a 
crime  to  have  been  committed,  assists  the  criminal  to  escape 
or  to  conceal  the  crime. 

Classification  of  Crimes. 

Crimes  are  divided  into  treason,  felonies  and  misde- 
meanors. 

Treason,  the  highest  of  all  crimes,  involves  an  attack 
upon  the  government  itself. 

At  common  law,  felonies  were  such  crimes  as,  upon  con- 
viction, involved  the  forfeiture  of  the  convicted  party's  es- 
tate. Felonies,  at  this  period  were  generally  punishable  by 
death.  The  principal  common  law  felonies  were :  Murder, 
manslaughter,  mayhem,  arson,  rape,  burglary,  and  robbery. 

The  laws  of  the  different  states  are  not  uniform  at  the 
present  time  as  to  what  constitutes  a  felony.  The  most 
common  rule  is  to  consider  as  felonies  all  crimes  which  are 
punished  by  death  or  by  imprisonment  in  the  penitentiary. 

Misdemeanors  include  all  crimes  which  are  neither  trea- 
son nor  felonies. 

Treason. 

At  an  early  period  in  English  history  a  large  number  of 
different  acts  were  each  held  to  constitute  treason,  and  the 
exact  boundaries  of  this  crime  were  very  uncertain.  By 
Stat.  25,  Edw.  IIT,  c.  2  (confirmed  by  Stat.  57,  Geo.  Ill,  c. 
6),  the  acts  which  constituted  treason  were  defined  and 
limited. 

The  3rd  Section  of  Article  IIT  of  the  United  States  Con- 
stitution treats  of  the  subject  of  treason  as  follows: 


54  putney's  bar  examination  review 

"1.  Treason  against  the  United  States  shall  consist  only 
in  levying  war  against  them,  or  in  adhering  to  their  ene- 
mies, giving  them  aid  and  comfort. 

"2.  No  person  shall  be  convicted  of  treason  unless  on 
the  testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court. 

"3.  The  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason,  but  no  attainder  of  treason  shall  work  cor- 
ruption of  blood,  or  forfeiture,  except  during  the  life  of 
the  person  attainted." 

There  may  be  treason  against  an  individual  state,  as  well 
as  against  the  United  States. 

Misprision  of  treason  consists  of  the  concealment,  by  any- 
one having  knowledge  thereof,  of  any  treason  committed 
or  contemplated. 

Murder  and  Manslaughter. 

Murder  and  manslaughter  both  involve  the  unlawful  tak- 
ing of  human  life.  Murder  is  the  more  criminal  of  the  two, 
consisting  in  the  unlawful  killing  of  a  human  being  with 
malice  aforethought,  either  express  or  implied.  Murder 
may  be  either  in  the  first  degree  or  the  second  degree.  In 
order  for  the  killing  to  constitute  murder  in  the  first  de- 
gree it  must  have  been  committed  with  deliberately  pre- 
meditated malice  aforethought,  or  in  the  commission  of  a 
felony,  or  committed  with  extreme  cruelty. 

Malice  is  always  an  essential  element  in  the  crime  of  mur- 
der. Death  must  result  within  "a  year  and  a  day"  from 
the  day  upon  which  the  injury  was  inflicted;  in  computing 
such  time  the  day  on  which  the  injury  was  inflicted  is 
counted  as  the  first  day. 

One  who  aids  or  abets  in  a  suicide  is  guilty  of  murder. 

Manslaughter  is  any  unlawful  killing  without  the  element 
of  malice  aforethought;  as  where  death  results  from  an  as- 
sault wdthout  the  intention  of  the  party  making  the  assault, 
or  where  one  person  kills  another  in  the  heat  of  passion  or 
upon  great  provocation. 


CRIMINAL   LAW  55 

Mayhem. 

Mayhem  is  an  old  common  law  felony  which  consisted  in 
depriving  another  of  any  part  of  his  body  which  was  of  use 
to  him  in  fighting.  In  this  country,  this  crime  (if  recog- 
nized at  all  as  a  distinct  species  of  crime)  is  generally  a 
misdemeanor. 

Robbery. 

Robbery  consists  in  the  taking  from  a  person  personal 
property,  by  force  and  violence  and  putting  in  fear.  It  is 
the  crime  of  larceny  with  the  addition  of  the  following  ele- 
ments: (1)  the  taking  from  the  person,  (2)  the  use  of 
force,  and  (3)  the  putting  in  fear.  Robbery  is  always  a 
felony,  both  at  common  law  and  by  statute. 

Burglary. 

Burglary  at  common  law  consisted  in  the  breaking  and 
entry  of  another's  dwelling-house  in  the  night  time,  with 
intent  to  commit  a  felony  therein.  By  statute  the  scope  of 
this  crime  has  been  generally  so  extended  as  to  include 
cases  of  breaking  and  entry  into  buildings  other  than  dwell- 
ing-houses. 

The  breaking  may  be  constructive,  instead  of  actual,  as 
where  fraud  or  threats  are  substituted  for  force.  The 
breaking  must  either  be  of  some  part  of  the  actual  en- 
closure which  constitutes  the  dwelling  house,  or  of  some 
interior  door  or  partition  in  the  house  when  entry  into  the 
house  was  obtained  without  a  breaking. 

The  entry  of  the  whole  person  within  the  house  is  not 
essential  to  the  commission  of  this  felony. 

The  "night-time"  during  which  this  crime  could  take 
place  was  held,  at  the  common  law,  to  extend  through  such 
period  of  time  as  the  face  of  a  person  could  not  be  discerned 
by  the  light  of  the  sun.  This  question  of  time  is  regulated 
in  some  states  by  statute. 

Rape. 

The  elements  necessary  to  constitute  the  crime  of  rape, 
are    carnal    knowledge    of    a    w^oman    (actual    penetration 


56  putney's  bar  examixation  review 

though  not  emission  being  necessary)  against  her  will,  such 
carnal  knowledge  being  secured  either  by  force  or  fraud. 
Sexual  intercourse  with  a  female  under  the  age  of  consent, 
either  with,  or  without  her  consent,  is  also  rape. 

Arson. 

Arson  is  the  intentionally  unlawful  burning  of  another's 
dwelling-house.  By  statute  the  scope  of  this  crime  has  been 
generally  extended  to  cover  the  burning  of  buildings  other 
than  dwelling-houses. 

Larceny  and  Embezzlement. 

Larceny  is  the  felonious  taking  and  carrying  away  of  the 
personal  property  of  another.  Larceny  is  either  grand  or 
petty,  according  to  the  value  of  the  property  stolen.  At 
common  law  the  crime  was  grand  larceny  if  the  value  of 
the  property  exceeded  twelve  pence.  The  dividing  line  is 
at  present  fixed  by  statutes  in  the  different  states. 

There  cannot  be  larceny  of  real  property,  but  portions 
of  realty  which  become  detached,  as  blinds  from  a  house, 
may  be  the  subject  of  larceny.  Wild  animals,  in  a  state  of 
nature,  are  not  the  subject  of  larceny. 

Embezzlement  was  not  an  offense  at  common  law%  but  has 
now"  been  made  so  by  statute  in  every  state  in  this  country. 
This  crime  consists  of  the  fraudulent  appropriation  of  an- 
other's goods  by  one  who  has  the  lawful  possession.  A 
distinction  must  be  drawn  between  the  case  of  one  who  has 
the  possession  of  goods  and  that  of  one  who  merely  has 
the  custody.  A  person  who  merely  having  the  custody  of 
goods  converts  them  to  his  OAvn  use  is  guilty  of  larceny. 
Thus,  while  an  agent  who  misappropriates  the  goods  of  his 
principal  is  guilty  of  eml)ezzleraent,  a  servant  Avho  misap- 
propriates the  goods  of  his  master  is  guilty  of  larceny.  By 
statute,  in  some  states  (e.  g.,  Illinois)  all  distinction  l)etween 
larceny  and  embezzlement  has  ])een  abolished. 

Forgery. 
B'orgery  consists  of  tlic  I'mudulent   making  or  alteration 
of  a  writing  to  the  financial  injury  of  another.     The  word 


CRIMINAL    LAW  oJ 

"writing"   here    is   held   to    include    either   printed   or   en- 
t^-raved  matter,  but  not  a  painting. 

A  false  letter  ot'  recommendation  for  a  salaried  position 
may  constitute  a  forgery,  but  not  a  mere  social  letter  of  in- 
troduction. 

A  very  slight  alteration  in  a  writing  will  not  be  sufficient 
to  constitute  this  crime;  the  forgery  must  be  material. 
There  may  be  a  forgery,  however,  without  any  false  sig- 
nature. 

The  intent  to  defraud  is  a  necessary  element  in  the  crime 
of  forgery. 

Filling  in  a  I)lank  in  a  writing,  or  falsely  indorsing  an- 
other's name  on  the  back  of  a  promissory  note,  may  consti- 
tute forgery. 

Counterfeiting. 

Counterfeiting  consists  in  the  making  of  a  false  coin  in 
the  likeness  of  the  genuine,  with  intent  to  defraud.  Coun- 
terfeiting, in  the  United  States,  is  a  crime  against  the  Na- 
tional Government  only.  A  state,  however,  may  punish  the 
passing  of  counterfeit  coins.  Counterfeiting  and  passing 
counterfeit  coins  are   entirely  distinct  crimes. 

Miscellaneous  Grimes  Against  Property. 

Obtaining  goods  by  oral  false  pretenses  was  not  originally 
a  crime  at  common  law.  A  crime  of  this  nature,  however, 
was  soon  found  necessary  to  supplement  the  crime  of  lar- 
ceny and  it  was  provided  that  designedly  obtaining  money, 
goods,  Avares,  or  merchandise  by  false  pretenses  with  intent 
to  defraud  any  person,  should  be  indictable.  The  folloAving 
elements  must  exist  in  order  to  constitute  this  crime:  (1) 
The  pretense  must  be  false;  (2)  there  must  be  an  intent  to 
defraud;  and  (3)  there  must  be  an  actual  perpetration  of 
the  fraud,  (4)  by  means  of  the  false  pretense. 

Mere  "puffing"  of  the  value  of  goods  owned  by  the  ac- 
cused is  not  sufficient  to  constitute  false  pretenses.  The 
false  pretenses,  however,  may  be  either  express  or  implied. 

The  crime  of  cheating  consists  in  the  pecuniary  injury 


58  putney's  bar  examination  review 

of  another  by  some  token,  device,  or  practice  of  such  a  char- 
acter as  is  calculated  to  deceive  the  public. 

Receiving  stolen  goods  M^as  not  originally  a  substantive 
offense ;  the  receiver  of  stolen  goods  being  only  punishable 
as  an  accessory  after  the  fact  to  the  crime  of  larceny.  This 
condition  of  the  law  has  been  changed,  both  in  England  and 
in  this  country,  and  the  person  who  receives  stolen  goods, 
either  for  the  purpose  of  aiding  the  thief,  or  to  obtain  a 
pecuniary  benefit  for  himself,  is  guilty  of  the  crime  of  re- 
ceiving stolen  goods.  A  person  has  received  stolen  goods 
when  they  have  come  under  his  control.  To  constitute  this 
crime,  it  is  not  necessary  that  the  person  receiving  the 
goods  should  have  had  positive  knowledge  that  they  were 
stolen;  it  is  sufficient  if  he  had  reasonable  ground  for  be- 
lieving them  to  be  stolen. 

Malicious  mischief  to  personal  property  was  a  crime  at 
common  law,  but  the  subject  is  now  mainly  regulated  by 
statute.  Under  the  modern  statutes  certain  injuries  to  real 
property  fall  within  the  scope  of  this  crime. 

The  malice  required  to  complete  this  crime  was  defined 
by  Blackstone  as  a  "  spirit  of  wanton  cruelty,  or  black  and 
diabolical  revenge." 

Certain  Offenses  Against  the  Person. 

The  principal  offenses  against  the  person,  not  already 
treated,  are  assault  and  battery,  and  false  imprisonment. 
These  crimes  are  also  important  torts,  and  the  elements 
necessary  to  constitute  them  are  treated  in  the  chapter  on 
Torts. 

The  crime  of  kidnapping  is  similar  in  most  respects  to 
that  of  false  imprisonment;  by  statutory  requirements  in 
most  states,  however,  an  intention  to  unlawfully  transport 
or  conceal  the  person  abducted  is  essential  to  constitute  the 
crime  of  kidnapping. 

Offenses  Against  the  Government. 

The  most  serious  of  all  offenses  against  the  government, 
that  of  treason,  has  already  been  considered. 


CRIMINAL    LAW  59 

Bribery,  is  an  old  common  law  misdemeanor  whose  scope 
has  been  greatly  extended  in  recent  times.  This  crime  now 
covers  every  case  where  any  undue  reward  (i.  e.,  any  reward 
not  authorized  by  law)  is  offered,  solicited,  or  received,  as 
a  consideration  for  the  discharge  of  any  public  duty.  Strict- 
ly speaking,  the  bribe  must  be  actually  received  for  the 
crime  to  be  consummated;  in  other  cases  falling  within  'he 
above  definition  there  is  an  attempted  bribery.  Both  the 
person  who  receives  a  bribe,  and  the  person  who  gives  a 
bribe,  are  guilty  of  this  crime  of  bribery. 

Extortion  consists  of  the  demanding  and  taking  an  ille- 
gal fee,  under  color  of  office,  by  any  public  official. 

Any  abuse  of  discretionary  authority  by  a  public  officer 
from  an  improper  motive,  which  does  not  amount  to  extor- 
tion, will  constitute  the  crime  of  oppression. 

Barratry,  champerty,  and  maintenance  are  three  kindred 
offenses  not  generally  enforced  at  the  present  time. 

Champerty  arises  where  a  stranger  in  interest  takes  part 
in  the  prosecution  of  a  suit  under  an  agreement  by  which 
he  was  to  have  part  of  the  proceeds  therefrom ;  while  main- 
tenance consists  in  officiously  and  without  just  cause  inter- 
meddling with  the  prosecution  or  defense  of  a  suit.  Ha- 
bitual champerty  or  maintenance  constitutes  barratry. 

"Perjury,  by  the  common  law%  seemeth  to  be  a  wilful 
false  oath,  by  one  who,  being  lawfully  required  to  depose 
the  truth  in  any  proceeding  in  a  court  of  justice,  swears 
absolutely,  in  a  matter  of  some  consequence,  to  the  point 
in  question,  whether  he  be  believed  or  not."  (1  Hawk  P. 
C,  8th  Ed.,  429.)  The  requisites  of  the  crime  are:  (1)  An 
oath  duly  administered;  (2)  in  a  judicial  proceeding;  and 
(3)  wilful  falsehood;  (4)  on  a  material  point. 

Subornation  of  perjury  consists  in  procuring  false  testi- 
mony by  another. 

Contempt  of  court  is  a  common  law  crime,  and  is  indict- 
able, but  is  generally  punished  in  a  summary  manner  by 
the  judge  before  whom,  or  against  whom,  it  is  committed. 

Embracery  consists  of  any  attempt,  whether  successful 
or  not,  to  corruptly  influence  a  juror  to  give  a  certain 
verdict. 


60  putney's  bar  examination  review 

Privson  breach  consists  of  a  forcible  breaking  out  of  his 
place  of  confinement  by  a  prisoner.  Escape  consists  in  a 
prisoner  unlawfully,  but  without  the  application  of  force, 
leaving  his  place  of  confinement.  Rescue  consists  in  the 
forcibly  and  knowingly  freeing  of  a  prisoner,  from  arrest 
or  imprisonment,  by  some  other  person. 

Offenses  Against  Public  Tranquillity,  Health,  Etc. 

Affray  consists  in  the  fighting,  by  mutual  consent,  of  two 
or  more  persons  in  some  public  place  to  the  terror  of  the 
public.  "A  riot  is  a  tumultuous  disturbance  of  the  peace, 
by  three  or  more  persons  assembling  together  of  their  own 
authority,  with  an  intent  to  assist  one  another  against  any 
one  who  shall  oppose  them  in  the  execution  of  some  enter- 
prise of  a  private  nature,  and  afterwards  actually  executing 
the  same  in  a  violent  and  turbulent  manner,  to  the  terror 
of  the  people,  \^'h(•thcr  the  act  itself  be  lawful  or  unlawful. 
A  riot  is  a  similar  meeting  upon  a  purpose  which,  if  exe- 
cuted, would  make  them  rioters,  and  which  they  actually 
make  a  motion  to  execute.  It  is  an  attempt  to  commit  a 
riot."     (i\ray  on  Criminal  Law,  Section  165.) 

Slander  and  libel  are  explained  in  the  chapter  on  torts. 
Libel  is  a  crime  as  well  as  a  tort,  while  slander  is  only  a 
tort. 

The  exact  scope  of  the  crime  of  conspiracy  has  never  been 
clearly  defined,  and  varies  in  the  different  jurisdictions;  in 
general  it  consists  of  an  agreement  to  do  an  unlawful  act. 

Other  crimes  (either  common  law  or  statutory)  falling 
under  this  classification  are:  Forcible  entry  and  detainer; 
eavesdropping;  committing  nuisances;  engrossing;  fore- 
stalling; and  regrating  (the  last  three  offenses  consisting  in 
various  methods  of  artificial  enhancement  or  depression  of 
prices'! . 

Offenses  Against  Religion,  Morality  and  Decency. 
The  crimes  of  apostasy  and  blasphemy  were  crimes  of  an 
ecclesiastical   character,   of   considerable   importance    at   an 
earlier  period,  but  now  practically  ol)solete. 


CRIMINAL   LAW  61 

The  crimes  against  sexual  morality  are :  Adultery,  biga- 
my  or  polygamy,  fornication,  sodomy,  seduction,  abduction, 
abortion,  and  lasciviousness. 

The  crime  of  adultery  consists  of  illegal  sexual  inter- 
course between  a  man  and  a  woman,  at  least  one  of  whom 
is  married.  In  some  states  if  either  is  married  both  are 
guilty  of  adultery;  in  other  states  if  one  party  is  married 
nnd  the  other  unmarried,  the  married  party  is  guilty  of 
adultery,  and  the  single  party  only  of  fornication;  in  still 
other  states  if  the  woman  is  married,  both  parties  are  guilty 
of  adultery,  but  if  the  man  is  married  and  the  woman  single 
then  the  man  is  guilty  of  adultery,  and  the  woman  of  for- 
nication. 

Fornication  is  illegal  sexual  intercourse  by  an  unmarried 
l)ersou.  A  simple  act  of  fornication  constitutes  a  crime  in 
only  a  very  few"  states. 

A  person  is  guilty  of  bigamy  who  is  married  to  two  per- 
sons at  the  same  time.  Strictly  speaking,  the  term  polygamy 
implies  a  marriage  to  more  than  two  persons,  but  the  terms 
bigamy  and  polygamy  are  often  used  interchangeably. 

Sodomy,  also  called  bestiality,  buggery,  or  the  crime 
against  nature,  consists  either  of  unnatural  sexual  inter- 
course between  two  men,  or  between  a  human  being  and  a 
beast. 

Seduction  consists  in  inducing  a  woman  to  submit  to  un- 
lawful sexual  intercourse  by  artifice  or  deceit. 

Abduction  originally  consisted  only  in  the  forcibly  taking 
away  of  a  woman  for  the  purpose  of  marriage  or  illegal 
sexual  intercourse.  The  scope  of  this  crime  has  been  ex- 
tended so  that  now  it  covers  all  cases  w^here  children  are 
stolen  away  from  their  parents  or  other  proper  guardians. 

Abortion  covers  all  cases  where  the  miscarriage  of  a 
woman  is  brought  about  either  by  an  operation,  by  drugs, 
or  in  any  manner  whatsoever. 

Lasciviousness  covers  all  cases  of  indecent  or  obscene 
actions. 


62  putney's  bar  examination  review 

Criminal  Procedure. 

Criminal  proceedings  may  be  instituted  in  several  dif- 
ferent ways.  The  accused  may  be  arrested  and  brought  be- 
fore a  magistrate  for  a  preliminary  hearing;  or  the  pro- 
ceedings may  be  begun  by  indictment;  presentment,  or  in- 
formation. 

Arrest  may  be  either  by  an  officer  or  by  a  private  citi- 
zen. Either  an  officer  or  a  private  citizen  may  arrest  a 
person  whom  they  have  seen  commit  a  felony.  An  officer 
may  also  arrest  without  a  warrant  when  he  has  reasonable 
ground  to  believe  that  a  felony  has  been  committed.  An 
officer  who  arrests  on  a  warrant  is  protected  if  the  warrant 
is  valid  on  its  face. 

On  a  preliminary  hearing  a  magistrate  may  release  the 
prisoner,  or  binfl  him  over  for  trial. 

Any  prisoner  (except  in  a  few  eases,  principally  those 
where  the  prisoner  is  accused  of  a  capital  offense),  when 
his  preliminary  hearing  is  postponed,  or  when  he  is  bound 
over  for  trial,  is  entitled  to  be  released  on  bail. 

An  indictment  is  a  formal  charge  against  a  person 
brought  by  a  grand  jury,  based  upon  evidence  presented 
to  such  jury.  A  presentment  is  like  an  indictment  except 
for  the  fact  that  it  is  brought  by  the  grand  jury  based  upon 
their  own  knowledge  or  information.  A  majority  vote,  only, 
of  the  grand  jury  is  required  to  adopt  either  an  indictment 
or  a  presentment. 

An  information  is  a  criminal  charge  filed  by  the  prose- 
cuting attorney  or  other  proper  official.  A  complaint  is  a 
criminal  charge  filed  by  a  private  person.  The  question  of 
what  criminal  action  may  be  commenced  by  information  or 
complaint  is  regulated  by  statute  in  each  state. 

The  Trial. 

Arraignment  consists  in  calling  the  prisoner  to  the  bar 
of  the  court  to  answer  the  charge  against  him.  A  general 
plea  is  either  "guilty"  or  "not  guilty."  The  accused,  how- 
ever, may  enter  a  plea  to  the  jurisdiction,  a  plea  in  abate- 


CRIMINAL   LAW  63 

raent,  or  a  special  plea  in  bar,  which  goes  to  the  merits  of 
the  indictment. 

The  accused  may  also  demur  to  the  indictment,  or  move 
to  quash.  Both  of  these  actions  raise  the  same  questions. 
In  state  courts  the  method  of  procedure  is  generally  a  mo- 
tion to  quash,  but  in  the  Federal  courts  a  demurrer  to  the 
indictment  is  the  proper  step,  except  where  the  objections 
to  the  indictment  do  not  appear  in  the  indictment.  Both 
of  these  methods  of  procedure  raise  the  question  of  the  suf- 
ficiency of  the  indictment,  both  as  to  substance  and  as  to 
form. 

At  common  law  there  were  a  number  of  methods  of  trying 
a  criminal  case,  but  at  the  present  time  there  are  practically 
only  two :    By  the  court,  and  by  the  jury. 

Trial  by  jury  in  a  criminal  case  is  similar  to  that  in  a 
civil  case,  which  is  discussed  in  the  chapter  on  Common  Law 
Pleading. 

Criminal  Evidence  is  treated  in  the  chapter  on  Evidence, 
and  the  various  protections  given  to  the  accused  in  the 
chapter  on  Constitutional  Law. 

After  Trial. 

After  a  verdict  of  acquittal  in  a  criminal  case  no  further 
steps  can  be  taken  by  the  prosecution.  After  a  verdict  of 
conviction  the  accused  may  make  a  motion  for  a  new  trial, 
or  a  motion  in  arrest  of  judgment,  to  the  trial  court ;  or 
may  take  the  case  to  an  Appellate  court  by  a  writ  of  error. 
In  some  states  there  may  be  an  appeal  from  an  inferior 
trial  court  to  a  superior  trial  court  where  the  case  will  be 
tHed  de  novo. 


CHAPTER  X. 
TORTS. 

"A  tort  is  a  breach  of  duty,  fixed  by  municipal  law,  for 
which  a  suit  for  damages  may  be  maintained." 

JMore  specifically,  a  tort  is  a  violation  of  some  one  of  those 
general  rights  which  are  secured  to  the  individual  by  the 
laws  as  against  ail  other  members  of  the  community;  as 
contradistinguished  from  those  special  rights,  which  arise 
out  of  contracts,  and  only  exist  against  the  other  parties 
to  such  contracts. 

Every  person  may  be  held  responsible  for  torts,  although 
the  liability  of  certain  classes  of  persons  is  limited.  An 
infant,  while  in  general  responsible  for  his  torts,  cannot 
be  held  liable  for  a  tort  where  malice  or  negligence  is  a 
necessary  element  until  he  has  arrived  at  years  of  discre- 
tion. The  age  of  fourteen  years  is  sometimes  taken  as 
being,  prima  facie,  the  dividing  line  in  such  cases.  At  com- 
mon law  the  husband  and  wife  were  jointly  liable  for  all 
torts  committed  by  the  wife  except  when  a  tort  was  com- 
mitted by  the  wife  in  the  presence  of  her  husband,  or  with 
his  assistance,  in  which  cases  the  husband  alone  was  respon- 
sible. This  has  been  almost  entirely  changed  by  statute  in 
nearly  all  the  states.  A  lunatic  is  liable  for  his  torts  except 
those  involving  malice. 

A  parent  is  responsible  for  any  tort  of  his  child  when  said 
tort  was  committed  under  his  instructions,  with  his  con- 
nivance or  consent,  in  his  presence  without  objection,  under 
circumstances  from  which  it  may  be  inferred  that  he  had 
Ivuowledge  of  the  act  and  made  no  effort  to  avert  it,  or 
where  the  tort  would  not  have  been  committed  except  for 
liis  negligonce  or  refusal  to  take  proper  precautions  to  pre- 
vent an  act  of  which  he  may  be  said  to  have  had  construc- 
tive notice.  Tn  the  absence  of  such  special  oircumstances 
the  father  is  not  liable  for  the  torts  of  his  child. 

64 


TORTS  65 

A  master  is  liable  for  the  torts  of  his  servant  committed 
in  the  regnhir  course  of  his  employment.  The  same  rule 
aj)plies  in  the  case  of  principal  and  agent. 

The  field  of  torts  o^•erlaps  that  of  criminal  law  on  the 
one  side  and  of  contracts  on  the  other.  Most  crimes  Avliich 
inflict  some  special  injury  on  an  individual  are  also  torts 
against  such  individual.  In  England  the  doctrine  was  held 
that  where  a  tort  amounted  to  a  felony,  the  felony  swal- 
lowed up  the  tort.  This  doctrine  was  never  adopted  in  this 
country,  except  in  a  very  few  states,  and  in  nearly  all  of 
such  states  it  has  now  been  abandoned.  The  same  transac- 
tion may  often  give  rise  to  an  action  either  of  tort  or  of  con- 
tract, at  the  option  of  the  injured  party.  Thus,  where  a 
person  is  induced  to  enter  into  a  contract  by  fraud,  he  may 
either  sue  on  the  contract,  or  if  he  prefers,  sue  in  tort  in 
an  action  for  deceit. 

There  are  no  common  requisites  w^hich  must  be  present 
in  the  case  of  every  tort.  The  necessary  elements  of  a 
tort  of  one  kind  differ  very  materially  from  those  of  an- 
other. The  study  of  torts,  therefore,  is  mainly  the  study 
of  the  various  individual  s])ecies  of  torts. 

Deceit. 
In  order  to  sustain  an  action  for  deceit,  each  of  the  five 
following  elements  must  be  present: 

(1)  There  must  be  a  misrepresentation  of  a  material 
fact; 

(2)  The  defendant  (in  the  action  for  deceit)  must  have 
known  the  statements  made  to  be  false ; 

(3)  The  plaintiff  (in  the  action  for  deceit)  must  not 
liave  known  the  statements  made  to  be  false,  but  must  have 
believed  them  to  be  true ; 

(4)  The  defendant  must  have  made  the  statement  with 
the  intention  of  having  it  acted  upon :  and 

(5)  The  plaintiff  must  have  actually  acted  upon  the 
statements  made  by  the  defendant,  and  as  a  result  have  been 
damaged  thereby. 

The   misrepresentation   by   the    defendant    may    he   made 


66  putney's  bar  examination  review 

either  (1)  by  express  words,  (2)  by  actions,  or  (3)  by  si- 
lence when  it  was  his  duty  to  speak. 

The  element  of  the  defendant's  knowledge  of  the  falsity 
of  the  statement  can  be  proved  by  showing  either : 

(1)  That  the  defendant  actually  knew  the  statement  to 
be  false; 

(2)  That  he  made  the  statement  recklessly,  without  tak- 
ing pains  to  ascertain  whether  it  was  true  or  false ; 

(3)  That  he  made  the  statement  positively,  when  in 
fact  it  was  only  a  matter  of  opinion;  or 

(4)  That  the  defendant  stood  in  such  a  relation  to  the 
subject-matter  that  it  was  his  duty  to  know  the  truth  con- 
cerning the  matter. 

The  primary  purpose  of  the  action  of  deceit  is  compen- 
sation for  the  injured  party  instead  of  punishment  for  the 
guilty  one;  therefore  if  the  false  representations  do  not 
lead  to  any  action  by  the  party  to  whom  they  are  addressed, 
or  if  he  acts  and  is  not  injured  there  can  be  no  recovery. 
Again,  it  must  be  noted  that  only  the  damage  due  to  the 
misrepresentation  can  be  recovered  for,  not  necessarily  all 
the  damage  resulting  from  the  whole  transaction. 

It  is  necessary  that  the  defendant  should  have  made  his 
statement  with  the  intention  of  having  it  acted  upon,  but 
he  may  have  made  such  statement  with  the  intention  of  in- 
fluencing either  (1)  a  particular  person;  (2)  any  one  out 
of  a  particular  class;  (3)  any  member  of  the  public.  The 
last  would  be  the  case  in  the  case  of  a  newspaper  adver- 
tisement. 

Assault  and  Battery. 

Blackstone's  definition  of  assault  and  battery  is  as  fol- 
lows : 

"Assault,  which  is  an  attempt  or  offer  to  beat  another, 
without  touching  him;  as  if  one  lifts  up  his  cane,  or  his 
fist,  in  a  threatening  manner  at  another ;  or  strikes  at  him, 
but  misses  him;  this  is  an  assault  insultus  which  Finch 
describes  to  be  'an  unlawful  setting  upon  one's  person.' 
This  also  is  an  'Inchoate  violence'  amounting  to  consid- 
erably higher  than  bare  threats;  and,  therefore,  though  no 


TORTS  67 

actual  suffering  is  proved,  yet  the  party  injured  may  have 
redress  by  action  of  trespass  vi  et  armis;  wherein  he  shall 
recover  damages  as  a  compensation  for  the  injury.  *  *  * 
Battery,  which  is  the  unlawful  beating  of  another.  The 
least  touching  of  another's  person  wilfully,  or  in  anger,  is 
a  battery;  for  the  law  cannot  draw  the  line  between  dif- 
ferent degrees  of  violence,  and  therefore  totally  prohibits 
the  first  and  lowest  stage  of  it;  every  man's  person  being 
sacred,  and  no  other  having  a  right  to  meddle  with  it  in 
even  the  slightest  manner." 

There  must  be  an  actual  application  of  force,  however 
slight,  in  every  case  of  a  battery.  In  every  case  of  an  as- 
sault there  must  be  a  threat.  Such  threat  may  be,  and  often 
is,  by  act  rather  than  by  words.  There  must  be  present  ap- 
parent ability  to  carry  out  the  threat.  There  also  can  be 
no  assault  without  motion  of  some  kind;  it  is  unnecessary, 
however,  in  an  assault  that  the  force  should  reach  the  per- 
son at  whom  it  is  directed. 

An  aggravated  assault  or  battery  is  either  one  which  oc- 
curs in  the  commission  of  some  other,  and  more  serious  of- 
fense, or  one  done  under  circumstances,  or  in'  a  manner 
which  adds  to  the  enormity  of  the  act.  The  following  are 
examples  of  what  have  been  held  to  be  aggravated  assaults 
or  batteries: 

An  assault  by  an  adult  on  a  child,  or  an  assault  on  a 
decrepit  person. 

An  indecent  assault. 

An  assault  with  a  deadly  weapon. 

An  assault  committed  in  a  court  of  justice,  or  in  the 
house  of  a  private  family. 

An  assault  committed  in  such  a  way  as  to  inflict  disgrace, 
as  by  horsewhipping  the  party  injured. 

An  assault  by  cutting  or  shooting. 

Any  assault  which  results  in  serious  injury. 

A  justifiable  assault  or  battery  is  one  committed  under 
such  circumstances  as  to  relieve  the  party  committing  it 
from  all  liability  therefor,  either  civil  or  criminal.  The  fol- 
lowing are  justifiable  assaults : 


68  putney's  bar  exa.mixation  review 

Those  comuiiUed  iu  the  exereiye  of  proper  governmental 
authority ; 

Those  committed  in  the  exercise  of  what  may  be  described 
as  quasi  public  authority,  such  as  the  right  of  railway  of- 
ficials to  keep  order  on  their  property; 

The  forcible  restraint  of  a  madman; 

Aid  extended  to  a  sick  or  drunken  person; 

Moderate  punishment  of  children  by  parents  or  by  those 
in  loco  parentis ; 

Accidental  physical  contact  in  a  crowd ; 

Physical  contact  in  the  course  of  any  lawful  game; 

Any  assault  or  battery  committed  in  the  defense  of  one's 
person  or  property,  or  in  the  defense  of  the  person  of  near 
relatives,  or  of  a  master  or  servant. 

In  cases  of  self-defense  the  force  exercised  must  not  be 
out  of  proportion  to  the  threatened  injury.  Furthermore 
the  party  whose  person  or  property  is  threatened  must  re- 
sort to  all  other  reasonable  methods  of  protection,  before 
he  himself  resorts  to  force.  It  was  formerly  said  that  be- 
fore resorting  to  force  in  self-defense  the  party  must  "re- 
treat to  the  wall  or  ditch."  A  more  lil^eral  view  is  held  at 
present,  however.  When  a  party  is  assaulted  and  uses  un- 
reasonable force  in  return,  the  two  parties  may  be  held 
guilty  of  mutual  assaults.  The  right  to  use  force  in  defense 
of  property  is  somewhat  more  restricted  than  in  the  de- 
fense of  one's  person. 

False  Imprisonment. 

False  imprisonment  is  the  unlawfid  total  restraint  of  the 
liberty  of  a  person.  The  prevention  of  a  person  from  go- 
ing in  a  certain  direction  or  to  a  certain  place  will  not  con- 
stitute the  tort.  False  imprisonment  may  either  be  under 
improper  legal  proceedings  or  entirely  without  legal  proc- 
ess. 

Torts  Against  Real  Property.     Trespass,   Waste  and  Nui- 
sance. 
The  torts  which  affect  real  piT)])erty.  are  trespass,  waste 
and  nuisance.     In  trespass  the  injury  is  committed  on  the 


TORTS  69 

prrrperty  by  a  person  who  has  neither  the  ownership  nor 
the  right  of  possession.  Waste  is  committed  on  the  prop.- 
erty,  by  a  person,  other  than  the  ultimate  owner,  who  has 
the  right  of  possession.  Nuisance  is  committed  off  the 
premises. 

Trespass. 

The  law  against  trespassing  upon  real  property  is  (the- 
oreticaly  at  least)  very  strict.  Any  unauthorized  entry 
upon  the  lands  of  another  is  a  trespass,  whether  any  dam- 
age is  inflicted  or  not.  Authority  to  enter  upon  the  lands 
of  another  can  be  acquired  in  three  general  ways:  (1)  By 
express  license  of  the  owner,  (2)  by  implied  license  of  the 
owner,  and  (3)  by  license  of  law.  The  law  makes  very 
liberal  presumptions  as  to  the  authority  of  the  second  class. 
A  person  is  in  general  presumed  to  extend  an  implied  li- 
cense to  enter  upon  his  property  to  anyone  who  desires 
to  see  him  for  any  proper  business  or  social  purpose. 

The  classes  of  cases  where  a  person  may  enter  upon  the 
land  of  another  under  license  of  the  law  are  numerous  and 
of  very  different  characters. 

Public  officers  may  enter  to  serve  legal  papers,  preserve 
the  peace,  or  to  perform  any  other  proper  governmental 
functions.  Entry  ms^y  be  made  by  an  adjoining  landowner 
to  abate  a  nuisance. 

Persons  who  have  or  desire  to  have,  business  dealings, 
with  them  may  enter  under  license  of  the  law,  the  prop- 
erty of  those  engaged  in  a  quasi  public  business  (e.  g,, 
common  carriers  and  innkeepers). 

A  creditor  may  enter  the  property  of  his  debtor  to  de- 
mand payment. 

The  owner  of  property  may  enter  it  to  see  if  his  tenant 
is  using  it  in  a  proper  manner. 

When  the  personal  property  of  one  person  gets  on  the 
land  of  another,  without  the  fault  of  the  owner  of  such 
personal  property,  he  may  enter  to  recover  such  goods. 

Necessity  may  justify  such  entry,  as  where  a  person  is 
chased  by  a  dangerous  animal  and  is  seeking  a  place  of 
refuge. 


70  putney's  bar  examination  review 

Many  other  illustrations  of  entry  under  license  of  the 
law  might  be  given. 

When  a  person  rightfully  enters  upon  the  property  of 
another,  under  license  of  the  law,  and  then  commits  a  tres- 
pass upon  such  property,  he  becomes  a  trespasser  ab  initio. 

Waste. 
Waste  was  originally  redressed  by  the  old  real  action  of 
waste,  and  when  this  action  became  obsolete,  trespass  on 
tlie  case  became  the  remed3^  This  is  the  only  case  (inde- 
pendent of  recent  statutes)  where  tresspass  on  the  case 
lies  in  the  case  of  a  direct  application  of  force. 

Nuisance. 
An  action  ex  delicto  (trespass  on  the  case)  will  always 
lie  in  the  case  of  a  private  nuisance.  A  nuisance  is  a 
private  one  as  regards  any  particular  individual  when  that 
individual  suffers  some  special  damage  in  addition  to  the 
general  damage  suffered  by  such  member  of  the  community. 
In  such  a  case  the  party  injured  may  also  abate  the  nui- 
sance, or,  in  proper  cases  secure  an  injunction  against  the 
act  constituting  the  nuisance. 

Trespass  to  Personal  Property. 

Trespass  against  personal  property  may  consist  either 
in  the  taking  away  of  the  property  (trespass  de  bonis 
asportatis),  the  destruction  of  the  propert3%  or  the  dam- 
aging of  the  property.  It  was  only  at  a  comparatively  late 
period  in  the  history  of  the  common  law  that  an  action  be- 
gan to  be  permitted  for  the  last  mentioned  species  of  tres- 
pass. 

A  trespass  de  bonis  asportatis  is  now  known  by  the 
name  of  conversion.  Actual  taking  of  the  property  from 
the  owner's  possession  is  not  necessary  to  constitute  a  con- 
version. Every  act  of  control  over  personal  property  with- 
out the  owner's  authority  and  in  violation  of  his  rights, 
is  a  conversion. 

In  order  to  maintain  an  action  for  trespass  to  personal 


TORTS  71 

property  of  the  plaintiff  must  either  have  the  actual  posses- 
sion of  the  property  or  constructive  possession,  with  right 
to  immediate  possession.  Bare  possession  is  sufficient  to 
sustain  an  action  against  anyone  but  the  rightful  owner; 
while,  on  the  other  hand,  the  right  of  the  general  owner  to 
bring  such  action  is  barred  by  outstanding  possession  in 
another. 

Indirect  Trespass. 

Indirect  trespass  consists  of  those  injuries  not  inflicted 
directly  by  the  tort  feasor,  but  committed  through  the  ac- 
tion of  some  agency  or  instrumentality  under  his  control. 
Under  this  heading  are  included  injuries  inflicted  by  agents 
or  servants,  by  animals,  or  by  inanimate  dangerous  ob- 
jects. 

The  liability  of  a  person  for  torts  committed  by  his  agent 
has  been  already  discussed  in  the  chapter  on  Agency. 

In  considering  the  question  of  the  liability  of  a  person 
for  injuries  occasioned  by  animals  of  which  he  is  the  owner, 
a  distinction  is  to  be  here  observed  between  injuries  oc- 
casioned by  wild  animals,  and  those  caused  by  domestic 
animals.  Violence  being  the  natural  disposition  of  the 
former,  their  owners  are  absolutely  liable  for  damage 
which  they  may  occasion.  In  the  case  of  domestic  animals 
the  owner  is  not  liable  for  the  damage  which  they  may  oc- 
casion in  the  absence  of  knowledge  on  his  part  of  the 
vicious  propensities  of  the  animal.  Dogs  occupy  an  inter- 
mediate position  between  other  domestic  animals  and  wild 
animals.  At  common  law,  the  rule  governing  liability  for 
injury  caused  by  dogs  was  the  same  as  in  the  case  of  other 
domestic  animals  but  by  statute  in  nearly  all  the  states, 
a  higher  degree  of  liability  has  been  imposed  upon  the 
owners  of  dogs. 

A  person  owning  or  controlling  dangerous  objects,  or 
elements,  must  take  proper  precautions  for  their  safe  keep- 
ing or  he  will  be  liable  for  any  damage  resulting  therefrom. 
Among  the  objects  and  elements  coming  under  this  head 
are  fire,  explosives,  dangerous  accumulations  of  water,  etc. 

Under  the  earlv  common  law  when  an  animal  or  an  in- 


72        .  putney's  bar  examination  review 

animate  object  occasioned  death,  liability  for  such  injury 
was  escaped  by  surrendering  the  animal  or  thing  causing 
the  damage.  Such  animal  or  thing  was  known  by  the  title 
of  a  "deodand." 

Seduction. 

Seduction  consists  in  inducing  a  woman  to  submit  to  un- 
lawful sexual  intercourse  by  the  means  of  some  influence, 
promise,  act  or  enticement  which  overcomes  her  scruples 
or  reluctance.  There  must  ])e  something  more  than  a  mere 
appeal  to  the  passions  of  the  woman,  and  mere  praise  or 
flattery  are  not  sufficient  to  constitute  the  tort.  As  the 
woman  herself  consents  to  the  act  she  herself  can  never 
bring  the  suit.  If  the  father  of  the  woman  is  alive  he  is 
the  proper  plaintiff.  The  ground  of  his  action  is  based  upon 
his  loss  of  the  services  of  his  daughter,  and  some  service 
from  the  daughter  to  the  father  must  be  proved  before 
there  can  be  any  recovery.  Such  services,  however,  may 
be  very  slight.  After  the  loss  of  some  service  has  been 
proved  additional  damages  may  be  given  to  the  father  for 
the  disgrace,  damage  to  his  feelings,  expense  of  caring  for 
his  child,  etc.  The  right  exists  in  the  father  even  if  the 
daughter  is  an  adult,  if  she  still  lives  with  him,  and  there 
are  cases  whe're  recover}^  has  been  allowed  where  the  daugh- 
ter was  living  away  from  her  father's  at  the  time  of  the 
seduction,  but  thereupon  returned  home. 

After  the  death  of  the  father  the  mother  may  sue  for  the 
seduction  of  her  daughter,  and  the  action  may  also  be 
brought  in  proper  cases  by  persons  standing  in  loco  parentis. 
A  master  may  recover  damages  for  the  seduction  of  his  fe- 
male servant  upon  the  proof  of  actual  damage  to  him- 
self. 

Malicious  Prosecution. 

The  most  important  tort  action  involving  malice,  is  that 
of  malicious  prosecution.  "Malicious  prosecution,  regarded 
as  a  remedy,  is  a  distinctive  action  ex  delicto  for  the  recov- 
ery of  damages  to  pei-son,  ])r()pei-ty,  or  reputation,  shown  to 
have  proxmiately  resulted  from  a  ])revious  or  criminal 
proceeding,    wliieh    was    commenced    or    continued   without 


TOKTrt  73 

probable  cause,  but  with  maliee,  and  which  has  terminated 
unsuccessfully.  Regarded  as  a  specific  tort,  it  is  the  wrong 
so  committed."     (26  Cyc,  p.  6.j 

The  following  are  the  essentials  to  be  proved  in  an  ac- 
tion of  malicious  prosecution;  (1)  The  commencement  or 
continuation  of  an  original  criminal  or  civil  judicial  pro- 
ceeding; (2)  its  legal  causation  l)y  the  present  defendant 
against  the  plaintiff;  (3)  its  bona  tide  termination  in  favor 
of  the  present  plaintiff";  (-4)  the  absence  of  probable  cause 
for  such  proceedings;  (5)  the  presence  of  malice  therein; 
(6)  damage  conforming  to  legal  standards,  resulting  to 
plaintiff. 

An  action  for  malicious  prosecution  is  almost  invariably 
based  upon  a  previous  criminal  prosecution,  but  may  be 
based  upon  a  previous  civil  suit  in  wliich  there  were  special 
circumstances  of  oppression ;  as  by  the  improper  use  of 
such  legal  actions  and  proceedings  as  attachment,  garnish- 
ment, forcible  entry,  and  detainer,  replevin,  and  eject- 
ment. 

Want  of  probable  cause  and  malice  must  each  be  proved. 
Proof  of  want  of  probable  cause  makes  out  a  prima  facie 
case  of  malice,  but  proof  of  malice  does  not  make  out  even 
a  prima  facie  case  of  want  of  probable  cause.  In  determin- 
ing wdiether  a  person  had  reasona])le  and  probable  cause 
for  instituting  an  action  the  question  must  be  answered  on 
the  basis  of  the  information  possessed  by  the  prosecutor  at 
the  time  of  the  institution  of  the  original  suit ;  liability 
can  neither  be  imposed  or  escaped  on  account  of  the  addi- 
tional information  wdiieh  may  come  to  his  knowledge  later. 

A  person  may  be  liable  in  an  action  of  malicious  prose- 
cution either  on  account  of  instituting  the  original  action, 
of  advising  it,  or  of  continuing  it  nfter  the  want  of  proliable 
cause  has  been  shown. 

In  cases  of  criminal  prosecution  there  must  always  be  a 
termination  of  such  proceedings  in  favor  of  the  defendant 
therein,  before  an  action  for  malicious  prosecution  will  lie, 
except  in  the  case  of  ex  parte  proceedings.  '  A  number  of 
cases,  however,  have  held  that  a  termination  of  a  suit  of  a 


74  putney's  bar  examination  review 

civil  nature  is  not  necessary  before  an  action  of  malicious 
prosecution,  based  thereon,  can  be  brought.  In  cases  of 
attachment  the  defendant  will  not  be  barred  from  bringing 
an  action  for  malicious  prosecution  by  the  fact  that  he  paid 
the  plaintiff's  claim,  as  the  release  of  the  attached  prop- 
erty may  have  been  imperative  to  him. 

Malicious  Interference  With  Contracts. 

The  old  action  for  malicious  interference  with  contracts 
is  now  practically  obsolete.  It  was  mainly  used  by  a  mas- 
ter against  any  one  who  enticed  away  his  servant. 

Conspiracy. 

The  civil  action  of  conspiracy  has  a  somewhat  wider 
scope  than  the  criminal  one.  Conspiracy  by  itself  is  not  a 
cause  of  action.  If  an  act  is  lawful  it  cannot  be  made  un- 
lawful by  a  number  of  persons  uniting  to  do  it.  (There  are 
perhaps  some  exceptions  to  this  rule  in  the  case  of  contracts 
in  restraint  of  trade.) 

When  the  mischief  contemplated  is  accomplished  the  con- 
spiracy becomes  important,  as  it  may  affect  the  means  and 
measure  of  redress.  It  may  be  pleaded  and  proved  as  ag- 
gravating the  wrong  of  which  plaintiff  complains,  and  to 
enable  him  to  recover  against  all  the  defendants  as  joint 
tort-feasors.  The  party  wronged  may  look  beyond  the  ac- 
tual participants  m  committing  the  injury,  and  join  with 
them  as  defendants  all  who  conspired  to  accomplish  it. 

Slander  and  Libel. 

Slander  is  defamation  conveyed  to  the  ear  of  some  third 
person,  and  libel  is  defamation  conveyed  to  the  eye  of  such 
third  person.  Libel,  in  some  cases,  is  a  crime  as  well  as  a 
tort,  while  slander  can  never  be. 

Libel  is  always  actionable  per  se  (i.  e.,  without  proof 
of  special  damage),  while  slander  is  only  actionable  per  se 
in  the  following  classes  of  cases: 

(1)  "Where  the  charge,  which  is  the  basis  of  the  action, 
imputes  to  the  plaintiff  the  commission  of  an  indictable 
offense  involving  moral  turpitude : 


TORTS  /O 

(2)  Where  it  imputes  that  the  plaintiff  has  a  contagious 
or  infectious  disease  of  a  disgraceful  kind ; 

(3)  Where  the  charge  is  one  tending  to  injure  the 
plaintiff  in  respect  to  his  office,  business  or  occupation ;  and, 

(4)  Where  the  charge  is  one  tending  to  disinherit  the 
plaintiff. 

In  order  to  sustain  an  action  for  either  slander  or  libel 
there  must  be  a  publication  or  the  defamation.  By  publi- 
cation IS  meant  the  communication  of  the  defamation  to 
some  third  party.  AVords  spoken  to  the  plaintiff'  himself 
and  without  the  hearing  of  any  third  party  can  never  con- 
stitute slander,  no  matter  what  charges  or  accusations  may 
be  made.  Similarly  it  is  not  libel  to  send  a  letter  contain- 
ing charges  about  a  certain  person  to  that  person  himself, 
unless  the  circumstances  were  such  as  to  render  it  probable 
that  the  letter  would  be  opened  and  read  by  some  third 
person.  The  publication  of  a  libel  contained  on  a  postal 
card  is  completed  as  soon  as  the  postal  card  is  mailed. 
^Merely  writing  defamatory  statements  without  the  inten- 
tion to  let  them  pass  out  of  the  possession  of  the  writer 
does  not  constitute  a  publication.  It  is  certain  that  the 
dication  of  defamatory  matter  to  a  stenographer  consti- 
tutes slander,  and  some  decisions  have  held  that  an  action 
for  libel  can  also  be  brought  in  such  a  case. 

The  tM^o  principal  defenses  against  suits  for  slander  or 
libel  are  truth  and  privilege. 

At  common  law  the  truth  of  a  statement  is  a  defense  to 
any  prosecution,  either  civil  or  criminal  for  either  slander 
or  libel,  and  the  purpose  or  motive  of  the  defendant  is  im- 
material. In  many  states  it  is  now  provided,  either  by  the 
State  Constitution  or  by  statute,  that  truth  shall  only  be  a 
good  defense  when  published  with  proper  motives. 

Privileged  communication  may  be  either  absolutely  privi- 
leged or  only  qualifiedly  privileged.  Statements  made  in 
the  course  of  legislative  or  judicial  proceedings  are  abso- 
lutelj^  privileged.  No  action  for  slander  or  libel  can  be 
based  upon  statements  made  in  such  places,  even  although 
such  statements  were   both   known  to   be  false   and  mali- 


76  putney's  bar  examination  review 

ciously  spoken.  The  rule  as  to  the  al)soliite  protection  of 
statements  made  in  the  eoui'se  of  judicial  proceedings  is 
qualified  by  the  rule  that  such  statements,  in  order  to  enjoy 
this  absolute  protection,  must  be  material  and  pertinent  to 
the  controversy  before  the  court. 

Qualifiedly  privileged  communications  are  those  held  to 
be  privileged  in  the  absence  of  malice.  Qualifiedly  priv- 
ileged communications  have  been  held  to  include :  proceed- 
ings in  a  church,  lodge,  or  other  meeting  of  a  quasi  public 
character:  official  communications,  reports  of  public  com- 
mittees; mercantile  reports;  communications  as  to  char- 
acter of  suitor  or  lover  when  made  by  a  near  relative  of 
the  party  concerned;  communications  made  in  the  course 
of  a  mutual  controversy  or  at  the  request  of  the  party  de- 
famed; and  communications  relative  to  the  appointment  of 
public  officers;  relative  to  the  appointment  of  school  teach- 
ers ;  or  regarding  liquor  licenses. 

The  bad  character  of  the  plaintiff  in  an  action  for  slander 
or  libel  is  not  a  complete  defense,  although  it  may  be  shown 
in  mitigation  of  damages.  It  is  no  defense  that  the  de- 
fendant believed  the  charges  which  he  made  to  be  true,  if 
they  were  in  fact  false.  Neither  is  it  a  defense  that  the 
charges  were  made  under  the  influence  of  sudden  passion, 
or  that  there  had  been  a  prior  publication  of  the  libel  by  a 
third  person,  or  that  there  M^ere  reports  and  rumors  pre- 
viously existing. 

Negligence. 

Negligence  is  not  a  distinctive  tort  in  itself,  but  rather  an 
element  towards  fixing  liability  in  a  number  of  different 
torts.  The  loss  occasioned  by  negligence  may  take  the 
form  of  either  damage  to  the  person,  of  damage  to  real 
property,  or  of  damage  to  personal  property.  Before  lia- 
bility can  be  imposed  on  the  ground  of  negligence  the  vio- 
lation of  a  duty  must  be  proved.  The  duties  which  may 
be  \Holated  by  negligence  are:  to  do  all  acts  in  a  careful 
manner;  not  to  do  any  act  which  will  wrongly  expose  the 
person  or  property  of  another  to  danger;  and  to  do  certain 
acts  necessary  to  protect  the  persons  and  property  of  others 


TORTS  77 

from  danger.  In  other  Avords,  negligence  may  consist 
either:  in  doing  a  certain  thing  at  all;  in  not  doing  some- 
thing; or  in  doing  anything  in  a  negligent  manner. 

Where  the  negligence  of  the  party  damaged  has  con- 
tributed as  an  appreciable  cause  to  the  result  there  can  be 
no  recovery. 


CHAPTER  XI. 
DOMESTIC  RELATIONS. 

Marriage. 

"Marriage  is  a  mutual  agreement  of  man  and  woman  to 
live  together  in  the  relation  and  under  the  duties  of  hus- 
band and  wife,  sharing  each  other's  fate  or  fortune  for 
weal  or  woe  until  parted  by  death."  (Lewis  vs.  Amis,  44 
Texas,  319.) 

The  contract  of  marriage  differs  from  all  other  contracts 
in  the  fact  that  it  cannot  be  rescinded  by  the  mutual  con- 
sent of  the  contracting  parties. 

Besides  being  a  contract,  marriage  is  also  a  status.  By 
entering  into  a  marriage  contract  the  parties  thereto,  in 
addition  to  assuming  certain  rights  and  liabilities  towards 
each  other,  assume  a  new  relation  towards  society  in  gen- 
eral. It  is  on  account  of  the  existence  of  this  status  that 
the  law  undertakes  to  regulate  the  marriage  contract  more 
closely  than  any  other  species  of  contract. 

The  age  of  consent  is  the  age  at  which  a  person  can  make 
a  valid  contract  of  marriage.  At  common  law  it  is  four- 
teen years  in  the  case  of  males,  and  twelve  years  in  the 
case  of  females. 

By  statutory  provisions,  in  the  several  states,  the  con- 
sent of  the  parents  of  minors,  even  although  over  the  age 
of  consent,  to  his  or  her  marriage  is  generally  required. 

The  disregarding  of  such  statutory  requirement  will  not 
invalidate  the  marriage,  but  the  minister  or  public  official 
celebrating  the  marriage  renders  himself  criminally  liable. 
Such  marriage  may  be  disaffirmed  at  any  time  before  the 
party  reaches  the  age  of  consent  or  upon  reaching  such 
age;  it  can  only  be  ratified  after  the  party  has  reached 
the  age  of  consent. 

The  right  to  disaffirm  such  marriage  is  personal  to  the 
party  under  the  age  of  consent  at  the  time  the  marriage 
was  contracted. 

78 


DOMESTIC   RELATIONS  79 

Physical  disability  is  the  inability  to  perform  the  act  of  sex- 
ual intercourse.  This,  if  incurable,  is  a  ground  for  the  dis- 
solution of  the  marriage,  but  to  have  such  effect  it  must  have 
existed  at  the  time  the  marriage  was  contracted. 

The  mental  incapacity  of  one  of  the  parties  to  a  marriage 
contract  will  render  such  contract  void,  as  will  also  the 
drunkenness  of  one  of  the  parties  to  a  marriage,  if  to  such 
a  degree  as  to  render  him  unconscious  of  what  he  was  doing. 

Bigamy  is  the  entering  into  of  the  marriage  contract  by 
a  party  already  having  a  legal  wife  or  husband,  alive  and 
undivorced.    A  bigamous  marriage  is  void. 

Where  a  valid  marriage  is  once  shown  to  exist,  all  pre- 
sumptions of  fact,  especially  in  criminal  cases,  will  be  in- 
dulged to  uphold  the  marriage.  The  law  will  also  make 
such  presumptions  of  facts  as  will  tend  to  uphold  the  in- 
nocence of  the  parties  or  the  legitimacy  of  children;  thus 
the  presumption  of  the  law  as  to  death,  marriage  or  divorce 
may  be  different,  even  on  the  same  state  of  facts,  in  differ- 
ent classes  of  cases. 

Marriages  are  voidable  if  entered  into  when  under  a 
duress  of  sufficient  force  to  destroy  the  free  will  of  a  per- 
son of  ordinary  bravery  and  fortitude. 

Divorce. 

At  common  law  there  were  two  kinds  of  divorce:  A 
vinculo  matrimonii,  or  absolute  divorce,  and  a  mensa  et 
thoro,  which  nearly  corresponded  to  our  separate  main- 
tenance. In  the  United  States  there  is  but  one  kind  of 
divorce — an  absolute  release  from  the  marriage  relation. 

A  marriage  license  is  a  permit  which  parties  desiring  to 
marry  are  required  by  law  to  take  out  from  the  proper 
officials.  Marriage  entered  into  without  such  license,  even 
where  it  is  required  by  law,  are  nevertheless  binding.  The 
parties  to  the  marriage  and  the  minister  or  public  official 
performing  the  marriage  are,  however,  criminally  liable. 
Marriages  solemnized  by  a  civil  officer  outside  of  his  juris- 
diction have  no  effect  whatever. 

Under  the  common  law  a  marriage  could  be  entered  into 


80  putney's    BAK    KXAiMIXA'i'KJN    UEVIEW 

l>y  Mil  agreement  between  the  parties  to  that  effect,  Avithout 
any  ceremony  taking  effect.  Sucli  a  marriage  Avas  called 
a  common  law  marriage.  Such  a  marriage  might  be  either 
"per  verba  de  praesenti,"  which  became  binding  at  once, 
or  "per  verba  de  futuro  cum  copula,"  which  only  became 
binding  when  consummated.  Common  law  marriages  have 
now  been  abolished  in  nearly  all  of  the  states  in  this  country. 
Husband  and  Wife. 

At  common  law  the  husband  was  liable  for  all  the  ante- 
nuptial debts  of  his  wife.  He  could,  however,  set  up  as  a 
defense  to  such  debts  any  defense  which  could  have  been 
personally  set  up  by  the  wife,  including  the  infancy  of  wife. 

The  death  of  the  wife  released  the  husband  from  all  lia- 
bility for  any  debt  of  the  wife  which  had  not  been  re- 
duced to  judgment  against  the  husband  during  the 
coverture. 

A  wife  was  not  liable  for  the  debts  of  her  husband. 

At  common  law  by  marriage  all  the  personal  property  of 
the  wife  passed  to  her  hasl)and  who  was  also  entitled  to 
the  rents  and  profits  of  hei'  real  estate  during  coverture. 

Under  modern  statutes  a  husband  may  make  a  gift  of 
any  property  which  he  desires  to  his  wife,  and  such  gift 
will  be  upheld  if  not  in  fraud  of  creditors.  There  is  no 
need  of  any  valuable  consideration,  the  good  consideration 
of  love  and  affection  is  sufficient. 

AVhere  the  husband  purchases  property  with  his  own 
money  and  takes  the  title  in  the  name  of  his  wife,  the  pre- 
sumption of  the  law  is  that  the  intention  was  to  make  a 
gift  of  the  property  to  the  wife. 

A  husband  has  a  right  of  action  against  any  person  guilty 
of  criminal  conversation  with  his  wife,  or  Avho  alienates  his 
wife's  affections  or  entices  her  away  from  him.  In  all  such 
eases  he  is  entitled  to  recover  not  only  for  the  loss  of  his 
wife's  services,  but  also  for  the  loss  of  her  affection  and 
society,  and  the  shame,  mortification  and  disgrace  brought 
upon  him. 

At  common  laAV  a  wife  could  not  sue  For  the  alienation 
of  her  husl)and's  affection  but  she  lias  the  right  by  statute 
at  the  present  time  to  sue  in  such  cases. 


DOMESTIC    HELATUJNS  81 

By  marriage  the  domicile  of  the  wile  becomes  the  same 
as  that  of  the  husband. 

The  better  rule  is  that  when  a  wife  is  i^roperly  living 
apart  from  her  husband,  that  the  place  of  his  domicile  does 
not  determine  hers  and  that  she  may  make  her  domicile 
where  she  desires.  It  has  been  held,  however,  that  nothing 
short  of  a  decree  of  divorce  can  give  such  right  of  select- 
ing her  domicile  to  the  wife.  AVhere  the  justification  of  the 
wife  in  living  apart  from  her  husband  is  in  dispute  she 
can  acquire  a  separate  domicile  to  enable  her  to  sue  for 
divorce,  but  for  no  other  purpose. 

At  common  law  a  husband  was  liable  for  all  torts  com- 
mitted by  his  wife.  The  wife  herself  was  jointly  liable  for 
such  torts,  unless  they  were  committed  jointly  wnth  the  hus- 
band or  in  his  presence,  in  which  case  the  husband  alone 
was  liable. 

The  common  law  disabilities  of  a  married  woman  have 
now  been  almost  entirely  done  away  with.  This  subject 
is  entirely  regulated  by  statute  and  varies  greatly  in  the 
different  states. 

Parent  and  Child. 

The  right  to  the  custody  of  a  child  is  primarily  in  the 
father;  after  the  death,  or  desertion  of  the  father,  the  right 
to  the  custody  of  the  child  passes  to  the  mother. 

A  father  maj'-  surrender  his  right  to  the  custody  of  his 
child  by  emancipating  him,  but  such  emancipation  is 
revocable. 

A  parent  is  liable  for  the  support  of  his  minor  children, 
and  if  he  fails  to  furnish  necessaries  to  his  minor  child,  a 
third  person  w^ho  supplies  such  necessaries  may  recover 
from  him.  The  estate  of  a  deceased  parent  cannot  be  held 
for  the  support  of  his  minor  child. 

In  case  of  a  divorce,  the  custody  of  the  children  Avill  be 
determined  by  the  court  The  governing  consideration  will 
be  the  best  interests  of  the  child. 

Bastards  and  Adopted  Children. 

A  bastard  is  a  child  born  out  of  lawful  wedlock.  At 
common  law  such  a   child  was  not  made  legitimate  bv  the 


82  putney's  bar  examination  review 

after  marriage  of  the  parents,  liut  the  opixisitt^  rule  pre- 
vails in  this  country  to-day.  At  common  law  a  bastard 
could  inherit  from  no  one.  To-day  a  bastard  may  inherit 
from,  or  through,  his  mother  and  from  his  own  descendants. 
Adoption  was  not  recognized  at  common  law,  and  is  en- 
tirely regulated  by  statute.  A  bastard  may  inherit  from, 
but  not  through,  his  adopting  parents,  and  may  also  inherit 
from  his  natural  parents.  Adopting  parents  cannot  inherit 
from  an  adopted  child,  except  property  which  such  child 
has  received  from  them. 


CHAPTER  XII. 
REAL  PROPERTY. 

Two  difficuitJeh  are  encountered  al  the  very  outset,  in 
the  study  of  the  law  of  real  property.  The  first  of  these 
arises  from  the  fact  that  the  distinction  between  real  and 
personal  property  under  the  common  law,  is  a  very  techni- 
cal one.  in  the  second  place,  confusion  often  arises  from 
the  fact  that  the  term  real  property  is  applied  both  to  the 
physical,  tangible  portion  of  the  earth's  surface,  and  to 
certain  interests,  possessed  bj-  individuals  in  such  property. 
The  distinction  between  real  and  persona]  property  grew 
out  of  the  feudal  system.  Under  this  system  only  certain 
estates  were  considered  as  freeholds,  or  estates  which  were 
of  sufifieient  dignity  to  be  held  by  a  freeman;  all  estates 
less  than  a  freehold  are  only  considered  as  personal  prop- 
erty. Or,  i>ut  in  another  way,  estates  of  freehold  (i.  e., 
estates  of  inheritance  and  estates  for  lifej,  and  none  other, 
are  real  property.  In  some  states  this  is  modified  by  statute, 
and  estates  for  a  term  of  years,  extending  beyond  a  certain 
I>eriod,  are  made  real  property. 

In  most  books  on  this  subject  real  property  is  said  Uj 
include  lands,  tenements  and  hereditaments.  We  find  here 
a  rather  confusing  mingling  of  the  tangible  property  itself 
and  of  interests  therein.  Land  includes  the  soil  of  the  earth, 
and  all  things  naturally  annexed  to  it.  It  also  includes 
everj'thing  above  and  below  the  surface,  "from  the  center 
of  the  earth  to  the  highest  heavens."  The  authorities  and 
decisions  are  in  conflict  as  to  whether  the  term  land  is  broad 
enough  to  include  holdings  annexed  thereto.  Tenements 
include  anything  which  might  be  held  under  a  feudal 
tenure.  Hereditaments  is  the  broadest  term  of  all  and  in- 
cludes eveiything  which  can  pass  by  inheritance. 

Hereditament.^  are  divided  into  corporeal  and  incorporeal 
hereditaments.     The  distinction  between  the  two  generally 

83 


84  putney's  bar  examination  review 

given  is  that  a  corporeal  liereditament  is  the  thing  itself, 
and  an  incorporeal  hereditament  merely  some  interest  in,  or 
concerning  it.  This  distinction  is  inaccurate,  as  both  classes 
of  hereditaments  are  merely  interests  in  the  property.  The 
true  distinction  is  that  corporeal  hereditaments  are  inter- 
ests in  property  which  amount  to  the  general  right  of  own- 
ership or  possession,  while  incorporeal  hereditaments  con- 
sist of  special  rights  in  such  property.  In  early  times 
corporeal  hereditaments  were  created  by  livery  of  seisin; 
and  incorporeal  hereditaments  by  grant.  The  principal 
species  of  incorporeal  hereditaments  were :  advowsons, 
tithes,  commons,  ways,  offices,  dignities,  corodies,  annuities, 
franchises,  and  rents. 

Fixtures. 
The  meaning  of  the  word  ''fixtures"  in  the  law,  is  a 
doubtful  one.  By  some  writers,  and  in  some  decisions,  the 
term  is  applied  to  such  personal  property  as  does  not  be- 
come real  property  by  being  annexed  to  real  property.  The 
more  correct  usage,  however,  is  to  give  the  term  "fixtures" 
an  exactly  opposite  meaning,  and  to  apply  it  to  such  per- 
sonal property  as  does  become  real  property  by  such  annex- 
ation. The  question  is  merely  one  as  to  name,  the  law  on 
the  subject  being  clear.  The  rule  is  that,  in  general,  per- 
sonal property''  becomes  real  property  by  being  annexed  to 
real  property,  but,  an  exception  is  made  in  the  case  of 
personal  property,  used  for  trade,  domestic,  or  agricultural 
purposes,  annexed  to  the  land  by  one  rightfully  in  posses- 
sion, but  not  the  owner  of  such  real  property.  Tn  such 
cases  the  removal  of  such  property  is  permitted,  provided 
it  can  be  done  without  any  serious  injury  to  the  realty,  and 
provided  also,  such  property  is  removed  before  the  expira- 
tion of  the  terra  of  the  estate  of  the  person  owning  the  per- 
sonal property,  if  his  estate  is  one  of  definite  duration,  or 
within  a  reasonable  time  after  the  expiration  of  such  estate 
if  it  is  one  of  indefinite  duration.  In  case  a  tenant  holding 
a  lease  for  a  year,  during  such  period  annexes  some  trade 
fixtures  to  the  property,  and  later,  but  before  the  expiration 
of  his  first  tenancy,  takes  a  new  lease  for  a  second  year. 


REAL   PROPERTY 


85 


he  must  in  such  lease  reserve  the  I'iglit  to  remove  such  prop- 
erty or  he  will  be  unable  to  do  so  at  the  termination  of 
his  second  lease. 

Estates. 

An  estate  is  the  degree  of  interest  Avhich  a  person  holds 
in  property.  Estates  are  classified  both  as  to  their  quantity, 
quality,  time  of  enjoyment,  and  number  of  owners.  Every 
estate  falls  somcAvhere  under  each  of  the  four  classifica- 
tions : 

The  following  charts  show  the  general  outlines  of  these 
classifications  of  estates  :— 


I.     Classification  of  Estates  as  to  Quantity. 

Estates  of 


Freeholds 


Inheritance 


\  Fee-simple 
Fee-tail      ( General 
Special 


Freeholds  less  than 
Inheritance 


fFor  years 
Less  than  J  At  will 
Freeholds   ]  From  year  to  year 

[At  sufferance 


Conventional 
Life  Estates 


Legal  Life 
Estates 


For  one's  own  life 
For  the  life  of 

another 
Estate  tail  after 
possibility  of  is- 
sue extinct 

;  Coverture 
J  Curtesy 
I  Dower 
1^  Homestead 


II.     Classification  of  Estates  as  to  Quality. 

Absolute  Estates 

r  Fee  Conditionals  Precedent 

^      ■,-^-        1  T-i  4-  <-  Estates  on  Condition    J      o.,u 

Conditional  Estates    -.  j^^^^^es  on  Limitation  < 
Conditional  Limitations 


Subsequent 


III.     Classification  of  Estates  as  to  Time  of  Enjoyment. 
Estates  in  Possession 


Estates  in  Expectancy 


'  Reversions 
Possibility  of  Reverter 
■n        .   J  {  Vested 

Remainders      }  contingent 

Contingent,  Springing  and  Shifting  Uses 
Executory  Devises 


86  putney's  bar  examination  review 

IV.     Classification  of  Estates  as  to  the  number  of  owners. 
Estates  in  Severalty 


Joint  Estates 


Joint  Tenancies 

In  Common 

In  Entirety 

In  Co-parcenary 

Partnership  property 

Community  property 


Classification  of  Estates  as  to  Quantity. 

By  the  quantity  of  an  estate  is  meant  the  time  during 
which  it  is  to  (or  may)  endure.  Estates  under  this  classi- 
fication are  divided  into  estates  of  freehold,  and  estates  less 
than  freehold.  The  term  "freehold"  is  a  product  of  the 
feudal  system,  and  was  first  used  to  designate  those  estates 
which  a  freeman  might  hold,  as  distinguished  from  the 
unfree  tenures,  by  which  the  great  mass  of  the  population 
of  the  early  Middle  Ages  held. 

At  the  present  time  estates  of  inheritance  and  estates  for 
life  are  freeholds,  while  all  other  estates  are  classed  as  less 
than  freeholds.  An  estate  for  a  certain  number  of  years, 
no  matter  how  many,  is  considered  as  less  than  a  freehold. 
In  some  states  this  rule  is  modified  by  statute. 

There  are  two  species  of  estate  of  inheritance :  estates  in 
in  fee  simple,  and  estates  in  fee  tail.  An  estate  in  fee  sim- 
ple is  the  highest  estate  known  to  the  law.  Its  owner 
(unless  he  falls  within  one  of  those  classes  of  persons  who 
do  not  have  the  power  to  contract)  may  freely  alienate  it 
either  during  his  lifetime,  or,  by  will,  after  his  death.  If 
such  owner  dies  intestate  the  property  may  descend  to  any 
of  the  heirs  of  the  deceased,  either  lineal  or  colhiteral.  An 
estate  in  fee  simple  could  formerly  only  be  created  by  the 
use  of  the  word  "heirs,"  for  which  there  w^as  no  possible 
substitute.  If  no  words  of  limitation  were  inserted  in  a 
deed,  the  early  rule  Avas  that  the  grantee  took  a  life  estate. 
This  rule  has  been  changed,  and  at  the  present  time,  where 
there  are  no  M'ords  of  limitation,  the  grantee  takes  a  fee 
simple,  or  the  entire  interest  of  the  grantor  if  such  interest 
is  less  than  a  fee  simple. 


KEAL   PROPERTY  87 

An  estate  in  fee  tail  is  one  limited  to  a  certain  person 
"and  the  heirs  of  his  body."  Such  an  estate  could  only 
descend  to  the  lineal  descendants  of  the  first  taker,  it, 
however,  might  descend  to  a  collateral  relative  of  the  last 
holder,  provided  such  relative  was  a  lineal  descendant 
of  the  first  taker.  Estates  in  fee  tail  may  be  either  general 
or  special.  A  fee-tail  general  may  descend  to  any  of  the 
descendants  of  the  first  taker;  while  a  fee-tail  special  can 
only  descend  to  his  (or  her)  descendants  by  a  particular 
designated  person  as  wife  (or  husband).  There  may  also 
be  an  estate-tail  male,  or  an  estate-tail  female,  limited  re- 
spectively to  the  male  or  female  descendants  of  the  first 
taker.  Estates  in  fee-tail  are  practically  obsolete  in  this 
country.  In  most  states  they  are  abolished  entirely,  while 
in  the  few  states,  where  they  exist  at  all,  it  is  in  a  modi- 
fied form.  Thus,  in  Illinois,  if  an  estate-tail  is  created  the 
first  taker  has  a  life  estate,  and  after  his  death  his  descend- 
ants (if  he  leaves  any)  take  an  estate  in  fee-simple. 

Life  estates  are  either  conventional  or  legal,  the  former 
being  created  by  acts  of  the  parties,  and  the  latter  by  act 
of  law.  Conventional  life  estates  may  be  either  for  the  life 
of  the  holder  or  for  the  life  of  another  (per  auter  vie).  A 
peculiarity  of  the  rule  of  common  law  as  to  the  disposition 
of  an  estate  of  the  latter  character  is  found  in  cases  where 
the  tenant  survived  the  cestui  que  vie.  At  common  law 
such  an  estate  could  not  descend  to  the  heirs,  for  the  law 
of  descent  applies  only  to  estates  of  inheritance.  It  could 
not  pass  to  the  executor  or  administrator,  for  they  could 
take  only  chattel  interests,  and  this  estate  was  a  freehold. 
At  common  law  it  was  permitted  for  the  one  who  first  took 
possession  to  hold  such  estate,  and  he  was  called  the  gen- 
eral occupant.  This  right  of  general  occupancy  could  only 
be  exercised  where  there  were  no  persons  designated  in  the 
grant  who  could  take  as  special  occupants,  if  the  grant 
was  to  the  taker  of  the  estate,  and  his  heirs  during  the  life 
of  the  cestui  que  vie,  the  heirs  would  take  as  special  occu- 
pants, to  the  exclusion  of  the  general  occupant.  This  prin- 
ciple hfis  now  been  done  away  with,   and  such  an  estate 


88  putney's  bar  examination  review 

descends  to  the  heirs  of  the  tenant  for  life,  who  hold  it 
during  the  lifetime  of  the  party  for  whose  life  the  estate 
was   limited. 

The  legal  life  estates  are  those  of  coverture,  curtesy, 
dower,  and  homestead. 

Coverture  was  the  life  estate,  w^hich,  at  common  law,  a 
husband  had  in  all  the  real  property  of  his  wife  during  the 
continuance  of  the  marriage. 

Curtesy  is  the  estate  which  a  husband  has  in  the  real 
estate  of  his  wife  after  her  death.  The  requisites  for  an 
estate  in  curtesy  are:  (1)  legal  marriage;  (2)  birth  alive 
of  issue  capable  of  inheriting;  (3)  actual  seisin  during  mar- 
riage, and  (4)  death  of  wife.  Curtesy  exists  in  all  the 
estates  in  real  property  of  the  wife  both  legal  and  equita- 
ble, except  in  such  estates  as  terminate  with  the  death  of 
the  wife.  In  many  states  curtesy  has  been  abolished  by 
statutes,  for  example,  in  Illinois,  curtesy  has  been  abolished 
and  the  husband  been  given  an  estate  in  dowser. 

Dower  is  the  life  estate  which  the  wife  has,  after  the 
death  of  her  husband,  in  one-third  of  all  the  real  estate 
held  by  her  husband  at  any  time  during  marriage  (and  in 
which  she  has  not  released  such  right  of  dower)  which  any 
issue  whom  she  might  have  had,  might  have  inherited. 
Actual  birth  of  issue  is  not  necessary.  Neither  is  actual 
seisin  during  marriage  required,  the  right  to  immediate 
seisin  is  sufficient.  At  common  law,  dowser  did  not  exist 
in  equitable  estates.  In  Illinois,  by  statute,  both  hus- 
band and  wife  have  dower  interests  in  the  equitable  estates 
of  the  other  (i.  e.,  where  the  husband  or  wife  is  cestui 
(|ue  trust).  A  husband  cannot  transfer  any  of  his  real 
property,  so  as  to  deprive  the  wife  of  her  doAver  right,  un- 
less she  joins  in  the  conveyance.  If  the  husband  exchanges 
one  piece  of  land  for  another,  without  the  consent  of  the 
wife,  she  can  elect  which  parcel  of  land  she  will  claim  dower 
in.  It  is  possible  for  two  or  more  persons  to  have  dower 
rights  in  the  same  property  at  the  same  time. 

Homestead  is  the  right  which  the  head  of  a  family  has 
to  hold  leal  property  up  to  a  certain  value,  free  from  the 


KKAL    PROPERTY  89 

liability  of  its  being  taken  on  execution  for  a  debt.     This 
estate  is,  in  reality,  an  exemption  rather  than  a  true  estate. 

The  estates  less  than  freehold  are  four  in  number:  (1; 
for  years,  (2)  at  will,  (3)  from  year  to  year,  and  (4)  at 
sufferance.  An  estate  for  years  is  one  which  is  to  continue 
for  any  definite  period.  An  estate  at  will  is  one  which  can 
be  terminated  at  any  time  at  the  will  of  either  party.  This 
estate  occasions  many  inconveniences  and  has  been  in  the 
main  superseded  by  estates  from  year  to  year.  Estates  at 
will  still  exist,  however,  (1)  where  the  property  is  leased 
for  an  indefinite  period  without  any  reservation  of  rent, 
or  (2)  where  although  rent  is  reserved  it  is  expressly  pro- 
vided that  the  estate  shall  be  one  at  will.  An  estate  from 
year  to  year  is  one  which  can  be  terminated  at  the  end  of 
any  year,  but,  which  if  not  so  terminated  will  continue  for 
another  year.  Instead  of  an  estate  from  year  to  year  there 
may  be  one  from  month  to  month;  or  the  period  which  is 
the  unit  of  occupation,  may  be  for  a  longer  period  than  one 
year — such  as  a  two  year  period.  In  tenancies  from  month 
to  month,  a  month's  notice  is  required  to  terminate  it.  In 
the  case  of  a  tenancy  from  year  to  year  the  length  of  notice 
required  is  generally  fixed  by  statute  (e.  g.,  sixty  days  in 
Illinois).  An  estate  at  sufferance  exists  where  a  person, 
rightfully  in  possession,  continues  to  occupy  the  property 
after  his  term  has  expired,  and  where  the  conditions  are  not 
such  as  to  make  him  a  tenant  from  year  to  year. 

Estates  Classified  as  to  Quality. 

By  the  <iuality  of  an  estate  is  meant  the  certainty,  or  un- 
certainty, of  its  continuance.  In  this  respect  estates  are 
divided  into  absolute  estates  and  conditional  estates.  An 
absolute  estate  is  one  which  is  certain  to  continue  for  the 
full  period  for  which  it  was  originally  granted.  A  condi- 
tional estate  is  one  whose  commencement,  continuation,  or 
termination  depends  upon  the  liapponing.  or  not  happen- 
ing, of  some  event. 

The  various  classes  of  conditional  estates  (sometimes  re- 
ferred to  as  base,   determinable,   or  qualified   estates')    are: 


90  puTxNey's  bar  examination  keview 

fee-conditionals,  estates  on  condition,  estates  on  limitation, 
and  conditional  limitations. 

A  fee-conditional  was  a  life  estate,  which  upon  the  birth 
of  issue  to  the  holder  was  enlarged  into  a  fee-simple.  This 
estate  was  abolished  by  the  statute  of  De  Donis  in  1285 
(13  Edward  I),  at  the  time  of  the  creation  of  estates  tail. 

An  estate  on  condition  is  one  which  is  created,  enlarged, 
or  defeated  by  the  happening,  or  not  happening  of  some 
event.  Conditions  are  eithcF  precedent  or  subsequent.  A 
condition  precedent  is  one  which  must  be  fulfiled  before  an 
estate  can  rest.  A  condition  subsequent  is  one  the  breach 
of  which  will  terminate  the  estate.  If  a  condition  prece- 
dent is  illegal,  or  against  public  policy,  the  estate  can  never 
vest;  if,  however,  a  condition  subsequent  is  illegal,  or 
against  public  policy,  such  condition  will  be  disregarded 
and  the  estate  become  an  absolute  one.  The  condition,  upon 
which  an  estate  depends,  may  be  an  event  which  depends 
upon  the  will  of  the  holder  of  the  estate,  or  an  event 
which  is  entirely  beyond  his  control.  The  courts  at  the 
present  time  look  with  a  great  deal  of  disfavor  upon  con- 
ditions subsequent;  and  in  their  place  restrictions  are  now 
being  generally  used.  A  breach  of  a  restriction  will  not 
work  a  forfeiture  of  the  estate,  but  such  breach  may  be 
restrained  by  injunction,  or  a  suit  for  damages  may  be 
brought  against  the  party  violating  the  restriction.  Courts 
of  equity  may  disregard  restrictions,  upon  the  ground  of 
changed  circumstances  affecting  the  property;  as  where 
the  restriction  was  that  no  building  except  a  private  resi- 
dence should  be  built  upon  the  property,  and  the  locality 
has  ceased  to  be  a  residential  one. 

An  estate  on  limitation  is  one  created  to  continue  until 
the  happening  of  a  certain  event,  or  during  the  continuance 
of  a  certain  state  of  affairs.  In  the  creation  of  an  estate 
upon  limitation  the  words  which  mark  the  termination  of 
the  estate  are  words  of  limitation,  and  are  used  in  connec- 
tion with  the  words  of  grant.  Estates  upon  limitation  are 
generally  created  by  the  use  of  such  words  as  "while," 
"as  long  as,"  etc. 


REAL    PROPERTY  91 

An  estate  upon  limitation  differs  from  an  estate  upon 
conditions  subsequent  in  three  respects:  (1)  No  act  of  the 
reversioner  is  required  after  the  termination  of  an  pstatc 
upon  limitation,  whihj  there  im^st  \)v  an  entry  at'ter  a 
breach  of  a  condition  subsecpu'nt  in  order  to  worlv  a  for- 
feiture; (2)  there  may  be  a  reuuainder  after  an  estate  upon 
limitation,  but  not  after  an  estate  on  condition  subsequent; 
and  (3)  results  which  cannot  l)e  attained  by  means  of  con- 
ditions subsequent,  on  account  of  such  conditions  being  il- 
legal or  against  public  policy,  may  be  attained  through  the 
use  of  estates  upon  limitation.  Thus  an  estate  to  A  "as 
long  as  he  remain  single"  will  terminate  upon  the  mar- 
riage of  A;  but  if  the  grant  is  "to  A  for  life,  on  condition 
that  he  does  not  marry,"  the  condition  is  held  to  be  against 
public  policy,  and  A  will  retain  the  estate  for  life,  even 
although  he  marries. 

A  conditional  limitation  was  the  last  of  the  conditional 
estates  in  point  of  time  to  come  into  existence.  It  is  a  future 
estate  granted  to  take  effect  upon  the  breach  of  the  condi- 
tion subsequent  and  therefore  an  estate  which  could  not  be 
good  as  a  common  law  remainder. 

Estates  Classified  as  to  the  Time  of  Their  Enjoyment. 

Under  this  classification  estates  are  primarily  divided 
into  estates  in  possession  and  estates  in  expectancy.  Es- 
tates in  expectancy,  are  estates  which  are  to  begin  in  the 
future,  and  include  reversions  and  remainders. 

A  reversion  is  a  future  estate  and  will  "revert"  back  to 
the  grantor  or  his  heirs.  If  such  reversion  may,  or  may 
not,  take  place  the  estate  instead  of  being  a  "reversion" 
is  called  a  "possibility  of  reverter."  After  a  life  estate 
the  future  estate  will  be  a  reversion;  after  a  fee-tail,  or  a 
conditional  fee-simple  it  will  be  a  possibility  of  reverter. 
There  can  be  no  future  estate  after  an  absolute  fee  simple. 

A  remainder  is  a  future  estate  created  in  favor  of  some 
third  person.  There  are  four  important  general  rules  gov- 
erning all  remainders,  which  should  be  carefully  remem- 
bered.    These  four  rules  are  as  follows: 


92  I'UTNKYS    liAH    EXAMlXA'l'IOX    REVIEW 

(1)  Evcj'y  i-eniriindfi-  must  li;i\e  a  preceding  estate  to 
support  it; 

(2)  A  remainder  must  be  created  at  the  .same  time,  and 
by  the  same  mstrumenv,  as  the  preceding  estate ; 

(3)  A  remainder  must  take  effect  immediately  upon 
the  termination  of  such  preceding  estate,  and 

(4)  A  remainder  must  not  take  effect  in  derogation  of 
the  preceding  estate. 

The  first  rule  means  that  the  owner  of  property  cannot 
grant  an  estate  to  begin  in  the  future,  reserving  the  prop- 
erty himself  until  such  future  estate  begins.  Thus  A  can- 
not deed  certain  land  to  B,  the  conveyance  to  take  effect 
ten  years  from  the  date  of  the  deed. 

Under  the  second  rule  a  person  cannot  convey  to  A  a  life 
estate  in  certain  property  today,  and  then  tomorrow,  create 
a  remainder  to  B  to  take  effect  after  the  death  of  A. 

The  third  rule  needs  little  explanation.  Where  an  imme- 
diate estate  is  granted  to  A,  followed  by  a  remainder  to  B, 
there  must  be  no  hiatus  between  the  termination  of  A 's 
estate,  and  the  commencement  of  B's.  If  there  should  be, 
there  would  be  a  reversion  to  the  grantor,  and  then  the 
remainder  to  B  could  not  take  effect.  There  can  never  be 
a  remainder  after  a  reversion,  although  there  may  be  either 
a  reversion,  or  another  remainder,  after  a  remainder. 

The  fourth  rule  means  that  a  remainder  cannot  take  ef- 
fect before  the  expiration  of  the  full  period  for  which  the 
preceding  estate  was  granted.  It  is  because  of  this  rule 
that  there  cannot  be  a  remainder  after  an  estate  on  condi- 
tion subsequent. 

''Remainders  are  either  vested  or  contingent.  Vested  re- 
mainders, or  remainders  executed,  are  those  by  which  a 
present  interest  passes  to  the  party,  though  to  be  enjoyed 
in  future  and  by  which  the  estate  is  invariably  fixed  to  re- 
main to  a  determinate  person  after  the  particular  estate  is 
spent.  As  if  A,  be  tenant  for  years,  remainder  to  B  in  fee : 
hereby  B's  remainder  is  vested,  which  nothing  can  defeat 
or  set  aside.  The  person  entitled  to  a  vested  remainder  has 
an   immodi;it('  fixed  right  of  future  enjoyment,  that  is.   an 


REAL    PROPERTY  93 

estate  in  present!,  tliougli  it  is  only  to  take  effect  in  pos- 
session at  a  future  period.  And  such  an  estate  may  be 
transferred,  aliened,  and  charged,  much  in  the  same  manner 
as  an  estate  in  possession. 

■'A  remainder  is  contingent  when  it  is  limited  to  take 
effect  on  an  event  or  condition,  which  may  not  happen  or 
he  performed,  or  which  may  not  happen  or  be  performed 
till  after  the  determination  of  the  preceding  particular 
estate ;  in  which  case  such  remainder  can  never  take  effect. 
It  is  not,  however,  the  uncertainty  of  ever  taking  effect  in 
possession,  that  makes  a  remainder  contingent,  for  to  that 
every  remainder  for  life,  or  in  tail,  expectant  on  an  estate 
for  life,  is  and  must  be  liable  as  the  remainder-man  may 
die,  or  die  without  issue  before  the  death  of  the  tenant  for 
life.  The  present  capacity  of  taking  eft"ect  in  possession,  if 
the  possession  were  to  become  vacant  before  the  estate  lim- 
ited in  remainder  determines,  universally  distinguishes  a 
vested  remainder  from,  one  that  is  contingent."  (Note  to 
Thomas'  Edition  of  Cokes  Institutes.) 

Two  additional  rules  must  be  remembered  in  the  case  of 
contingent  remainders:  (1)  the  preceding  estate  must  b;- 
a  freehold,  and  (2j  the  contingency  must  not  be  illegal, 
against  public  policy,  double  or  too  remote. 

Contingent,   Springing  and  Shifting  Uses,  and  Executory 

Devises. 

The  law  is  much  more  liberal  in  its  provisions  relative  to 
future  estates  created  by  Avill,  or  by  way  of  use,  than  it  is 
Avith  relation  to  legal  estates  created  by  deed. 

The  term  contingent  use  is  limited  in  its  application,  to 
such  future  uses,  as  w'ould  be  good  as  contingent  remainders 
if  they  were  transformed  into  legal  estates. 

Neither  springing  nor  shifting  uses  would  be  good  as 
legal  remainders,  as  they  each  violate  one  of  the  rules  gov- 
erning remainders.  A  springing  use  has  no  preceding  es- 
tate to  support  it,  and  a  shifting  use  vests  in  derogation 
of  the  preceding  estates. 

Executorv  devises  are  such  estates  as  are  good  if  created 


94  putney's  bar  examination  keview 

by  will,  but  which  caunot  be  created  by  deed;  they  cover 
practically  the  same  ground  as  springing  and  shifting  uses. 

Estates  Classified  as  to  the  Number  of  Owners. 

Every  estate  is  either  an  estate  in  severalty  or  a  joint 
estate.  An  estate  in  severalty  is  one  owned  by  one  person; 
a  joint  estate  is  one  owned  by  two  or  more  persons.  The 
various  species  of  joint  estates  are :  joint  tenancies,  tenan- 
cies in  common,  estates  in  coparcenary,  estates  by  entirety, 
and  partnership  estates. 

A  joint  tenancy  is  one  where  the  interest  of  all  the  parties 
are  equal,  and  were  created  at  the  same  time  by  the  same 
instrument.  A  joint  tenancy  possesses  the  four  unities 
of  time,  title,  interest,  and  possession.  Another  peculiarity 
of  joint  tenancies  is  the  right  of  survivorship.  When  one 
joint  tenant  dies  his  interest  in  the  property  goes  to  the 
other  joint  tenants,  instead  of  to  the  heirs  of  the  deceased. 
This  right  of  survivorship  may  be  defeated,  how^ever,  by  the 
transfer  of  the  interest  of  one  joint  tenant  to  a  third  per- 
son. The  four  unities  no  longer  exist  in  this  case,  and  the 
new  taker  is  a  tenant  in  common.  If  there  are  three  joint 
tenants,  A,  B  and  C,  and  A  transfers  his  interests  to  D,  while 
D  is  a  tenant  in  common,  the  transfer  does  not  affect  the 
relations  between  B  and  C.  They  are  joint  tenants  between 
themselves,  in  an  undivided  two-thirds  of  the  property, 
and  tenants  in  common  with  D.  The  law  formerly  favored 
joint  tenancies,  and  the  presumption  w^as  that  a  joint  estate 
which  possessed  the  four  unities  was  a  joint  tenancy.  At 
present  joint  tenancy  is  not  favored,  and  in  order  to  create 
such  an  estate  it  must  be  expressly  stated  to  be  such,  in 
the  deed  creating  it. 

In  an  estate  in  common  the  only  (necessary)  unity  is 
that  of  possession.  The  interests  of  the  parties  need  not 
be  equal,  and  such  interests  may  be  acquired  at  different 
times  and  by  different  instruments. 

An  estate  in  coparcenary  Avas  the  joint  estate  which  ac- 
cording to  common  law,  was  vested  by  descent  in  the  heirs 
of  an  intestate.  Such  estates  were  like  tenancies  in  common 
in  that  the  doctrine  of  survivorship  did  not  obtain,  but  the 


keal  property  95 

respective  shares  of  the  tenants  in  coparcenary  Avere  in- 
herited by  their  heirs.  The  doctrine  of  coparcenary  has 
never  prevailed  in  this  country  except  in  the  single  state 
of  ]\laryland.  Coparcenary  arose  where  a  person  who  was 
seised  in  fee  simple  or  in  fee  tail  died  and  his  next  heirs 
were  two  or  more  females,  his  daughters,  sisters,  aunts, 
cousins,  or  their  representatives.  It  also  extended  in  gavel- 
kind to  all  the  males  in  equal  degree  as  sons,  brothers, 
uncles,  etc.  In  either  of  these  cases,  all  the  coparcenaries 
put  together  made  but  one  heir.  The  right  of  partition  first 
existed  in  the  case  of  estates  of  this  character. 

An  estate  by  entirety  can  only  arise  where  a  husband  and 
wife  acquire  interests  in  land  by  the  same  conveyance. 
Each  is  held  to  hold  the  entire  estate  at  the  same  time. 
The  survivor  of  the  two  takes  the  entire  estate.  This  right 
of  survivorship  could  not  (as^in  the  case  of  estates  in  joint 
tenancy)  be  defeated  l)y  one  party  conveying  his  interest. 
In  Illinois,  and  some  other  states,  however,  it  was  decided 
that  a  decree  of  divorce  would  convert  an  estate  by  en- 
tirety into  an  estate  in  common.  A  number  of  states  have 
held  the  law  to  be  contrary  to  this.  Estates  by  entirety 
have  been  abolished  by  statute  in  most  states. 

Although  all  land  owned  by  a  partnership  must  be  held 
in  the  name  of  one  or  more  of  the  partners,  nevertheless, 
the  interest  of  the  partners  is  inferior  to  that  of  the  part- 
nership, and  the  creditors  of  the  partnership.  The  interest 
of  a  partner  in  land  lield  by  the  partnership  is  an  anomalous 
one,  being  in  reality,  one  in  the  excess  of  the  assets  of  the 
partnership  over  the  liabilities,  rather  than  in  any  specified 
piece   of  property. 

Titles. 

The  title  to  a  piece  of  property,  is  the  method  by  which 
it  was  acquired  or  the  authority  under  which  it  is  held. 

Titles  are  divided  into  original  titles  and  derivative  titles. 

The  original  title  to  a  piece  of  property,  is  the  one  upon 
which  all  subsequent  titles  are  hased,  and  beyond  which 
it  is  not  necessary  to  go  in  an  investigation  of  the  validity 
of  the  title  to  any  piece  of  land. 

Original  titles  are  always  held  by  some  eovernment.    In 


96  putney's  bak  exaaiixatiox  kemew 

this  country  the  original  title  ifs  iu  the  state  governments  in 
the  thirteen  original  states,  in  states  formed  out  of  these 
states  (as  Maine  from  Massachusetts  or  West  Virginia  from 
Virginia)  and  in  Texas;  and  in  the  United  States  government, 
in  the  remaining  states,  and  iu  all  the  territories  and  colonies. 
AVhere  territory  is  acquired  by  one  country  from  another, 
the  title  to  all  public  lands  passes  to  the  new  sovereign 
power,  but  the  validity  of  existing  land  titles  are  generally 
recognized.  As  a  result  of  this  principle,  the  original  title 
to  many  individual  pieces  of  land  in  this  country  is  that 
of  some  foreign  government,  which  previously  held  the 
particular  section  of  the  country,  and  by  whom  a  grant 
was  made  to  the  first  individual  owner  of  the  property. 
Thus,  in  Illinois,  many  titles  run  back  to  and  depend  u»pon, 
old  French  grants. 

Original  title  may  be  acquired  by  discovery,  occupancy, 
conquest,  or  cession.  Discovery,  however,  must  be  followed 
by  settlement,  to  create  a  title.  Occupancy,  consists  in  the 
taking  possession  of  land  not  previously  occupied  by  any 
civilized  nation. 

Derivative  titles  are  divided  into  titles  by  descent  and 
titles  by  purchase. 

Title  by  Descent. 

Titles  by  descent  are  limited  to  cases  where  a  person 
takes  land  from  a  relative  who  has  died  intestate. 

The  following  are  Blaekstone's  famous  seven  canons  of 
descent : 

(1)  Inheritances  shall  lineally  descend  to  the  issue  of 
the  person  avIio  last  died  actually  seised,  but  shall  never 
lineally  ascend.  Actual  seisin  is  necessary.  Thus,  if  A 
should  die  leaving  two  sons,  B,  the  elder,  C,  the  younger, 
and  B  should  die,  never  having  been  actually  seised,  C, 
the  younger  son,  would  inherit  to  the  exclusion  of  B's  heirs, 
as  being  the  heir  of  A,  the  person  last  actually  seised. 

(2)  ]\Iale  issue  shall  be  preferred  to  female.  A  dies  leav- 
ing three  daughters  and  one  son.  The  son  inherits  the 
whole  estate  to  the  exclusion  of  the  daughters. 

3.     Where  there  are  two  or  more  males  in  ef|ual  degree. 


REAL    PKUPEKTV  97 

the  eldest  only  shall  inherit;  where  there  are  two  or  more 
female  heirs  in  the  same  degree,  they  take  as  co-partners, 
share  and  share  alike. 

(4)  Tlie  lineal  descendants  of  any  person  deceased  shall 
represent  their  ancestor,  i.  e.,  shall  stand  in  the  same  place 
that  the  person  himself  would  have  stood,  had  he  been 
living. 

(5)  On  the  failure  of  lineal  descendants  of  the  person 
last  seised,  the  inheritance  shall  descend  to  his  collateral 
relations. 

(6)  The  collateral  heir  of  the  person  last  seised  must  be 
his  next  collateral  kinsman  of  the  whole  blood.  The  half- 
blood,  at  common  law,  could  never  inherit. 

(7)  In  collateral  inheritances,  kindred  derived  from  male 
ancestors,  however  remote,  shall  be  admitted  before  those 
derived  from  female  ancestors,  however  near. 

Some  of  these  canons,  particularly  the  first  three  and  the 
last,  have  been  changed  by  statute  in  many  of  the  states, 
the  subject  of  descent  now  being  entirely  regulated  by 
state  statutes  in  this  country. 

A  person's  relatives  by  consanguinity  are  of  two  classes — 
lineal  and  collateral.  Lineal  relatives  are  those  w4io  are 
descended  one  from  the  other.  Collateral  relatives  are 
those  who  are  not  descended,  either  from  the  other,  but  who 
are  descended  from  some  common  ancestor. 

If  a  person  who  dies  intestate  leaves  descendants  all  of 
his  property  (except  the  share  given  by  law^  to  a  surviving 
husband  or  wife),  both  at  common  law  and  by  the  terms 
of  the  various  statutes,  goes  to  such  descendants.  As- 
cendants w^ere  excluded  absolutely  from  inheriting  by  the 
common  law,  and  if  there  were  no  descendants  the  prop- 
erty went  to  the  nearest  collateral  relatives.  In  most  of 
the  states,  by  statute,  the  ascendants  now  inherit  after  the 
descendants,  either  completely,  or  together  wnth  the  broth- 
ers and  sisters  of  the  deceased.  If  there  are  neither  descend- 
ants nor  ascendants  the  property  .of  the  deceased  goes  by 
descent,  to  his  collateral  relative  or  relatives,  in  the  near- 
est degree. 

It  is  always  n  simple  matter  to  deteniiiup  the  degrfe  of 


98  putney's  bar  examination  review 

relationship  between  two  lineal  relatives,  as  each  generation 
between  the  two  counts  one  degree — father  and  son  being 
related  in  the  first  degree,  grandfather  and  grandson  in 
the  second  degree,  etc. 

It  is  a  somewhat  more  complicated  matter,  however,  to 
reckon  the  degree  of  relationship  between  two  col- 
lateral relatives.  Two  methods  of  determining  such  degree 
of  relationship  have  been  used.  One  is  the  method  both  of 
the  Common  law  and  of  the  Canon  law ;  the  other  is  the 
Civil  law  method  w^hich  is  today  used  in  this  country. 

Under  the  Common  law  method  the  nearest  common  an- 
cestor of  the  two  relatives  is  found  and  the  number  of 
generations  which  each  of  the  relatives  is  removed  from 
such  common  ancestor  is  next  ascertained.  The  number 
of  generations  in  the  longest  of  these  two  lines  is  then 
taken  as  the  degree  in  which  the  two  are  related. 

Under  the  Civil  law  rule,  the  nearest  common  ancestor 
is  found,  and  the  number  of  generations  from  such  com- 
mon ancestor  to  each  party  then  found.  The  number  of 
generations  in  each  line  are  then  added  to  give  the  degree 
in  which  the  two  collateral  relatives  are  related.  The  appli- 
cation of  these  rules  will  be  seen  by  the  following  chart. 


X  COMMON  ANCESTOR 


REAL   PROPERTY 


99 


Under  Common 

Under 

Civil 

Law  rule. 

Law 

rule. 

A  related 

to  D  in 

1st  degree 

2ndd 

egree 

A 

E    • 

2nd       •' 

3rd 

( ; 

A 

F  " 

3rd        ' 

4th 

« ( 

A 

G  " 

4th 

5th 

(  i 

A 

H  " 

5th 

6th 

) ; 

B 

D  " 

2nd       ' 

3rd 

;  ( 

13 

E  " 

2nd      ' 

4th 

i  i 

B 

F  " 

3rd        ' 

5th 

B 

G  " 

4th 

6th 

i  ( 

B 

H  " 

5th 

7th 

i  I 

C 

D  " 

3rd        ' 

4th 

i  i 

C 

E  " 

3rd        ' 

5th 

i  i 

C 

F  " 

3rd        ' 

6th 

<  i 

C 

G  " 

4th 

7th 

i  i 

c 

H  " 

5th 

8th 

(.  i 

The  right  of  representation  is  the  right  which  persons, 
whose  parent  is  dead,  ha-:;  to  take  the  share,  which  such 
parent  would  have  taken  if  living,  in  the  estate  of  some 
deceased  relative.  This  right  is  never  extended  further 
than  to  cover  the  cases  of  descendants  of  the  deceased  in- 
testate, or  descendants  of  the  brothers  and  sisters  of  such 
deceased.  The  principle  is  also  only  applied  in  cases  where 
some  of  the  same  generation  as  the  deceased  parent,  of 
the  persons  taking  by  right  of  representation,  are  still  liv- 
ing. Thus,  if  a  man  (A)  has  three  children,  B,  C,  and  D, 
and  B  also  has  one  child  (E),  C  has  two  children  (F  and 
G)  and  D  three  children  (H,  I  and  J)  ;  if  A  died  intestate, 
leaving  all  his  descendants  living  except  D,  then  B  and  C 
will  each  take  one-third  of  A's  estate,  while  H.  I  and  J 
will  divide  the  one-third  that  would  have  gone  to  D,  and 
take  one-ninth  of  A's  estate  each.  So,  again,  if  both  B  and 
D  died  before  A,  then  C  would  take  one-third  of  A's  es- 
tate, E  would  take  the  whole  of  B's  share,  while  H,  I  and 
J  would  each  take  one-ninth  of  the  estate  as  before.  Thus, 
E  a  grandchild,  would  take  three  times  as  large  a  share 


lUU  putney's  bak  ex AxMi nation  review 

as  either  H,  I  or  J,  also  grandeliildreii.  If,  however,  B,  C 
and  D  all  die  before  A,  then  the  estate  is  divided  equally 
between  the  six  grandchildren. 

Title  by  Purchase. 

Title  by  purchase  includes  all  methods  of  acquiring  prop- 
erty other  than  by  descent,  it  may  arise  either  by  act  of  tlie 
parties  or  by  operation  of  lav/. 

Title  by  act  of  the  parties  is  divided  into  title  by  grant 
and  title  by  devise. 

A  grant  is  either  public  or  private.  A  public  grant  is 
one  from  the  public.  A  public  grant  must  rest  upon  the 
authority  of  the  legislative  department  of  the  government. 
The  legislative  department  of  a  government  may  provide 
for  the  grant  of  land  in  either  one  of  two  ways:  first,  it 
may  pass  a  special  act  providing  for  the  transfer  of  certain 
specified  land  to  certain  specified  parties;  or,  second,  it 
may  pass  a  general  public  land  act,  by  the  compliance  with 
the  provisions  of  which  an  individual  may  acquire  land 
from  the  government.  Nearly  all  of  the  public  land  of 
the  United  States  has  been  disposed  of  in  the  second  man- 
ner. In  such  cases  a  "patent"  is  given  to  the  grantee, 
signed  in  the  name  of  (although  not  by)  the  President  of 
the  United  States. 

A  private  grant  is  one  by  a  private  person,  and  may  be 
either  by  deed,  or  by  dedication.  A  deed  is  used  where 
property  is  transferred  from  one  individual  to  another.  A 
dedication  is  a  grant  from  a  private  person  to  the  public. 

There  are  two  forms  of  dedication — common  law  and 
statutory.  In  the  former  method  no  particular  formalities 
are  required.  In  the  latter  method  the  formalities  are 
prescribed  by  the  statute,  and  must  be  closely  adhered  to. 
If  a  dedication,  however,  fails  as  a  statutory  dedication  it 
may  still  be  good  as  a  common  law  dedication.  A  dedi- 
cation may  be  either  in  fee  or  for  a  special  purpose.  In 
the  latter  case  the  fee  remains  in  the  grantor,  and  the  pub- 
lic only  takes  an  easement,  and  if  the  public  ceases  to  use 
the  property  for  the  purpose  for  Avhicb  is  wns  granted,  it 
reverts  1o  the  grantor. 


RKAL    PKOPEKTY  101 

Title  by  devise  is  title  by  will.  Tlic  right  to  dispose  of 
i-oal  property  by  will,  which  existed  in  England  in  Anglo- 
Saxon  times,  was  taken  away  at  the  time  of  the  Norman 
Conquest,  and  was  only  restored  by  the  Statute  of  Wills 
in  15-10.  This  right  was  not  complete  until  1660.  The  re- 
(luired  formalities  of  a  will  are  fixed  by  the  statutes  of 
I'ach  state. 

Title  by  Operation  of  Law. 

Title   by  operation  of  law   arises  in  the  following  cases: 

(1)  Cases  arising  from  natural  causes: 

(a)  Accretion,  which  is  the  increase  of  land  by 
the  gradual  and  imperceptible  additions  thereto 
caused  by  the  washing  of  the  sea  or  adjacent  stream. 

(b)  Reliction,  which  is  the  gradual  subsidence  of 
water  leaving  dry  land  Avhere  there  had  formerly 
been  water. 

(Avulsion  is  the  sudden  removal  or  deposit  of 
land  by  the  perceptible  action  of  water;  this  can- 
not change  the  title  to  land.) 

(2)  Cases   arising   from   civil    or   political   relations: 

(a)  Eminent  domain. 

(b)  Escheat. 

(c)  Confiscation. 

(d)  Forfeiture. 

(3)  Cases  arisino-  from  public  policy: 

(a)  Prescription. 

(b)  Limitation. 

The  effect  both  of  prescription  and  of  the  statute  of  lim- 
itation is  the  same ;  namely,  to  prevent  the  iiringing  of  an 
action  after  the  lapse  of  a  certain  period.  The  theory  in 
the  two  cases,  however,  is  different.  In  the  case  of  pre- 
scription the  law  presumes  that  there  was  a  transfer  of 
the  property  to  the  present  holder,  or  to  the  person  under 
whom  the  present  holder  claims,  while  in  the  case  of  the 
statute  of  limitation,  without  making  any  presumption,  it 
prohibits  any  action  to  be  brought,  in  order  to  restrict  liti- 
gation Avithin  proper  limits. 


102  putney's    RAR    r:XAMINATION    REVIEW 

Conveyancing. 

lu  early  times  land  -^'ould  only  be  trausi'ei-red  by  livery 
of  seisin,  which  must  take  plae(>  on  the  land  before  wit- 
nesses. Later  it  became  possible  to  transfer  real  property 
without  going  on  the  land,  but  land  could  not  be  trans- 
ferred merely  by  a  written  deed  until  after  the  passage  of 
the  Statute  of  Uses.  This  statute  revolutionized  the  method 
of  transferring  land,  but  this  was  an  entirely  unexpected 
result  of  the  statute. 

Prior  to  the  enactment  of  this  statute  it  was  possible  to 
transfer  the  equitable  title,  or  the  beneficial  use  to  land  by 
the  holder  of  the  property  executing  a  deed  of  trust  de- 
claring that  he  held  the  property  as  trustee  for  the  benefit 
of  some  other  party.  After  the  passage  of  the  statute,  the 
legal  title  would  follow  the  beneficial  use,  through  the  op- 
ei-ation  of  this  statute. 

The  complete  title,  both  legal  and  equitable,  was  thus 
transferred  without  the  necessity  of  livery  of  seisin;  the 
beneficial  use  was  transferred  by  the  written  instrument, 
and  the  legal  title  by  the  operation  of  this  statute. 

Early  deeds  are  classified  as  follows: 

Original  Common  Law  Deeds. 

(1)  Feoffment. 

(2)  Grant. 

(3)  Gift. 

(4)  Lease. 

(.5)   Exehange  and  partition. 

Derivative  Common  Tjnw  Deeds. 

(1)  Surrender. 

(2)  Release. 

(3)  Confirmation. 

(4)  Defeasance. 

(5)  Assignment. 

Deeds  Operating  LTnder  the  Statute  of  Uses. 

(1)  Bargain  and  sale. 

(2)  Covenjint  to  stand  seized. 


REAL   PROPERTY  103 

(3)  Lease  aud  release. 

(4)  Deeds  to  declare  a  use. 

(5)  Deed  of  revocation  of  uses. 

The  two  important  modern  forms  of  deeds  are  warranty 
deeds,  and  (luit  claim  deeds. 

In  a  warranty  deed  tlie  grantor  warrants  the  title.  In  a 
quit  claim  deed  the  grantor  merely  transfers  w^hat  interest 
he  has  (except  that  he  is  liable  for  any  incumbrance  which 
he  himself  has  put  upon  the  property  and  which  is  un- 
known to  the  grantee).  The  difference  in  effect  between  a 
warranty  deed  and  a  quit  claim  deed  is  not  one  affecting 
the  title,  but  instead,  the  collateral  liability  of  the  grantor. 
A  quit  claim  deed  conveys  all  the  interest  the  grantor  has, 
and  a  w^arranty  deed  can  convey  no  greater  interest.  In  a 
warranty  deed,  however,  the  grantor  assumes  a  collateral 
liability  to  re-imburse  the  grantee  for  any  defects  in  the 
title,  and  if  the  grantor  afterwards  acquire  the  title  to 
such  property  it  will  inure  to  the  benefit  of  the  grantee. 

In  many  states  there  are  at  present  certain  statutory 
forms  of  deeds  in  use.  Such  deeds,  however,  can  only  be 
used  in  simple  forms  of  conveyances. 

Parts  of  a  Deed. 
The  eight  formal  parts  of  a  deed  are  as  follows: 

(1)  The  premises. 

(2)  The  habendum, 

(3)  The  tenendum. 

(4)  The  reddendum. 

(5)  The  conditions. 

(6)  The  covenants. 

(7)  The  warranty. 

(8)  The  conclusion. 

There  are  five,  so-called,  common  covenants,  which  un- 
der the  laws  of  most  states,  are  presumed  in  the  case  of 
all  warranty  deeds.  These  five  common  covenants  are 
those  of  "seisin,"  "quiet  enjoyment,"  "good  right  to  eon- 


104  putney's  bar  examination  review 

vey,"   "free  from   incumbrances,"   and  of   "general   war- 
ranty. ' ' 

Description  of  Land. 

In  addition  to  describing  the  estate  wliicii  the  grantee  is 
to  take,  it  is  also  necessary  that  the  deed  should  identify 
the  land  to  be  transferred  by  such  deed.  This  identification 
of  the  land  may  be  secured  by  reference  to  the  following: 
(1)  Natural  objects  of  boundaries,  such  as  rivers,  mountains, 
etc.;  (2)  artificial  devices,  such  as  stakes  or  marked  trees; 
(3)  courses  and  distances. 

By  course  is  meant  the  direction  of  a  line,  and  by  dis- 
tance, its  extent.  Natural  objects  and  artificial  devices  are 
also  known  as  monuments;  courses  and  distances,  as  metes 
and  bounds.  The  name  of  calls  is  given  to  all  the  above 
mentioned  objects  collectively. 

Jt  is  also  a  common  practice  to  insert  in  a  deed  the  quan- 
tity of  land  conveyed  thereby.  In  case  of  inconsistencies 
between  the  different  methods  of  identification  they  con- 
trol, in  the  following  order:  First,  natural  objects;  second, 
artificial  devices;  third,  courses  and  distances;  and  fourth, 
enumeration  of  quantity. 

In  the  case  of  a  description  Avhere  one  description  is  ac- 
curate and  the  other  manifestly  inaccurate,  the  latter  may 
be  rejected  as  surplusage. 

"A  general  description  of  the  property  conveyed  may  be 
qualified  by  what  is  known  as  'exceptions  and  reservations.' 

"An  exception  is  a  withdrawal  from  the  operation  of  the 
grant  of  some  part  of  what  is  granted  in  general  terms,  as, 
for  instance,  a  grant  of  a  certain  field,  except  the  northAvest 
acre.  An  exception  is  therefore  always  a  part  of  the  thing 
granted  and  is  tangible. 

"A  reservation  is  the  creating  out  of  the  property 
granted,  of  some  new  incorporeal  hereditament,  such  as  a 
right  of  way  for  the  benefit  of  the  grantor."  (Putney's 
Law  Library,  1st  Edition,  Vol.  VI,  pages  115-116.) 


KEAL    PKOPEKTY  105 

Contest  in  the  Legal  History  of  England  Over  the  Right  of 
Alienation  of  Real  Property. 

"One  of  the  most  interesting  chapters  in  tlie  legal  history 
of  England  is  the  long  contest  between  those  who  desired 
to  keep  the  land  mainly  in  a  few  noble  families  and  to 
prevent  its  alienation,  and  those  who  desired  to  make  land 
a  free  object  of  commerce. 

"The  first  attempt  to  limit  its  alienation  came  in  the 
form  of  the  fee-conditional.  This  estate  proving  ineffectual 
to  accomplish  the  desired  puq^ose,  it  was  abolished  by  the 
Statute  of  De  Donis  and  the  fee-tail  substituted  therefor. 
A  little  later  a  new  method  was  devised  of*  alienating  es- 
tates in  fee-tail  by  the  means  of  fictitious  suits  known  as 
fineS;  and  common  recoveries. 

"Upon  the  fee-tail  becoming  ineffectual  for  the  purposes 
for  which  it  was  devised,  some  of  the  conveyancers  of  those 
days  indented  a  new  form  of  conveyance  by  which  land  was 
granted  to  the  first  taker  for  life  with  remainder  to  his 
heirs  or  remainder  to  the  heirs  of  his  body.  The  purpose 
of  the  inventors  of  this  form  of  conveyance  was  defeated 
by  the  construction  put  upon  it  by  the  court  in  a  decision 
which  has  since  been  known  as  the  rule  in  Shelley's  Case." 
(Id.,  pages  119-120.) 

The  Rule  in  Shelley's  Case, 

The  rule  in  Shelley's  Case  is  that  "When  a  person  takes 
an  estate  in  freehold,  legally  or  equitably,  under  a  deed, 
will  or  other  writing,  and  in  the  same  instrument  there  is 
a  limitation  by  way  of  remainder,  either  with  or  without 
the  interposition  of  another  estate,  of  an  interest  of  the 
same  legal  or  equitable  quality,  to  his  heirs,  or  heirs  of  his 
body,  as  a  class  of  persons,  to  take  in  succession  from 
generation  to  generation,  the  limitation  to  the  heirs  en- 
titles the  ancestor  to  the  whole  estate." 

The  words  "with  remainder  to  his  heirs"  are  considered 
as  words  of  limitation  instead  of  purchase. 

This  rule  really  presents  no  great  (iifficulty  if  the  student 
remembers  the  circumstances  under  Avhich  it  was  laid  down. 


106  putney's  bar  examination  review 

The  court  was  called  upon  to  construe  a  grant  "To  A  for 
life  with  remainder  to  the  heirs  of  his  body"  or  "to  A  for 
life  with  remainder  to  his  heirs.''  The  court  in  their  de- 
cision practically  held  the  words  "for  life  with  remainder 
to"  to  be  surplusage,  and  that  a  grant  to  "A  for  life  with 
remainder  to  the  heirs  of  his  body"  was  exactly  equivalent 
to,  a  grant  "to  A  and  the  heirs  of  his  body";  or,  in  other 
words,  that  it  created  an  estate  in  fee-tail. 


CHAPTER  XIII. 
PERSONAL  PROPERTY. 

(Note.  The  greater  part  of  the  subject-matter  generally 
covered  in  a  work  on  personal  property  has  'oeen  already 
treated  in  previous  chapters  in  this  book.  All  that  remains 
to  be  treated  here  is  the  subject  of  the  various  methods  of 
acciuiring  personal  property.) 

Personal  property  may  be  acquired  in  three  general  ways : 
(1)  By  original  acquisition,  (2)  by  act  of  the  parties,  and 
(3)  by  operation  of  law. 

Title  by  original  acquisition  is  in  turn  subdi^^ided  into: 

(1)  Occupancy. 

(2)  Accession. 

(3)  Products  of  intellectual  labor. 

(4)  Trade-marks. 

Property  may  still  be  acquired  by  occupancy  in  this  man- 
her  in  the  following  classes  of  cases: 

(1)  Goods  taken  by  capture  in  war. 

(2)  Goods  lost  by  their  owner  and  never  reclaimed. 

(3)  Goods  intentionally  abandoned. 

(4)  Waifs. 

(5)  Animals,   ferae  naturae  reclaimed. 

(1)  The  right  of  capture  of  personal  property  in  war 
w^as  formerly  of  great  importance,  but  is  now  generally 
limited  to  captures  on  water. 

(2)  and  (3)  Goods  lost  or  abandoned  become  the  prop- 
erty of  the  finder,  if  the  former  owner  has  entirely  aban- 
doned the  intention  of  reclaiming  them.  Until  such  aban- 
donment on  the  part  of  the  owner,  he  may  retake  his  lost 
chattels,  wherever  and  whenever  he  may  find  them,  even 
in  the  possession  of  a  bona  fide  purchaser. 

(4)  Waifs  are  stolen  goods  thrown  away  by  a  thief  in 
his  flight.  Formerly,  such  goods  belonged  to  the  govern- 
ment if  seized  by  anyone  but  the  owner,  but  at  the  present 

107 


108  putney's  bar  examination  review 

time  the  government  if<  held  to  hold  sneh  goods  in  trust 
for  the  true  owner. 

(5)  Wild  animals,  or  animals  ferae  naturae,  belong  to 
no  one.  Any  person  may  become  the  owner  of  such  ani- 
mals bj^  reducing  them  into  possession.  Such  property  is 
a  qualified  one,  however,  which  is  lost  upon  the  escape  of 
the  animal. 

Property  may  be  acquired  by  accession  in  the  following 
cases : 

(1)  The  fruits  of  the  earth,  either  produced  naturally, 
or  by  human  industry. 

(2)  The  increase  of  animals. 

(3)  ^Materials  of  one  person  united  to  the  materials  of 
another. 

(4)  Confusion  of  goods. 

(1)  The  productions  of  tli?  earth,  whether  produced  nat- 
urally, or  as  a  result  of  human  labor,  belong  to  the  owner 
of  the  soil  or  the  pei'son  rightfully  in  possession  thereof, 

(2)  The  increase  of  animals  belong  to  the  owner  of  the 
mother.  If  domestic  animals  are  hired  for  a  limited  period, 
their  increase  during  such  special  period  belongs  to  the 
hirer. 

(3)  Where  materials  are  furnished  by  one  person,  or 
several,  and  are  united  by  the  labor  oP  another,  the  joint 
produce  will,  in  the  absence  of  any  agreement,  belong  to 
the  contributor  of  the  most  important  or  valuable  constit- 
uent, whether  it  be  materials  or  labor. 

(4)  Where  a  person  wrongfully  so  mingles  his  own 
goods  with  those  of  another  person,  that  they  cannot  be 
separated,  the  wrongdoer  loses  his  goods,  which  become 
the  property  of  the  other  person. 

Under  the  products  of  intellectual  labors  are  included 
(1)  patents.  (2)  copyrights,  (3)  letters  and  (4)  lectures. 

(1)  and  (2)  Patents  and  copyrights  are  exclusive  rights 
to  the  use  of  discoveries  or  writings  for  limited  periods  and 
depend  entirely  upon  Federal  Statute. 

(3)  Where  a  letter  is  written  and  sent  by  one  person 
to  another,  the  right  of  property  in  the  letter  as  a  tangible 


PERSONAL    HKUPKKTY  109 

piece  of  property  is  in  the  party  receiving  it,  while  the 
right  of  property  in  the  letter  as  an  intellectual  production 
is  in  the  writer.  The  receiver  of  a  letter  has  no  right  to 
publish  it  without  the  consent  of  the  writer,  unless  such 
publication  is  necessary  for  the  defense  of  the  party  re- 
ceiving it. 

(4)  Lectures  are  a  product  of  intellectual  labor.  The 
party  who  composed  them  has  a  property  right  in  them 
and  they  cannot  be  published  without  his  consent. 

Trade-Marks. 

A  trade-mark  lias  been  defined  as  "the  name,  symbol,  fig- 
ure, letter,  form  or  de\  ice,  adopted  and  used  by  a  manu- 
facturer, or  merchant,  in  order  to  designate  the  goods  that 
he  manufactures,  or  sells,  and  distinguish  them  from  those 
manufactured  or  sold  by  another ;  to  the  end  that  they  may 
be  known  in  the  market  as  his,  and  thus  enable  him  to  se- 
cure such  profits  as  result  from  a  reputation  for  superior 
skill,   industry,   or   enterprise."      (Upton   on   Trade-^Marks, 

p.  2.) 

Unlike  patents  and  copyrights,  the  right  in  a  trade-mark 
is  given  by  the  common  law  instead  of  by  statute. 

Transfer  of  personal  property  by  the  act  of  the  parties 
may  take  place  through  any  of  the  following  methods: 

(1)  Gifts,  inter  vivos. 

(2)  Gifts,  causa  mortis. 

(3)  AVill  or  testament. 

(4)  Sales. 

(5)  Indorsements. 

(6)  Assignments. 

(7)  Bailments. 

Gifts  are  of  two  kinds,  inter  vivos  and  causa  mortis. 

A  gift  inter  vivos  is  a  voluntary,  actual  and  immediate 
transfer  of  a  thing  by  one  living  person  to  another  living 
person,  actual  delivery  being  essential  .to  complete  the 
transfer. 

Gifts  causa  mortis  are  gifts  ol*  pe^rsonal  property,  made 
in  prospect  of  death  at  no  very  remote  period,  and  which 


110  putney's  bak  examination  review 

are  dependent  upon  the  condition  of  death  occurring  sub- 
stantially as  expected  by  the  donor,  and  that  the  same 
be  not  revoked  before  his  death. 

The  ownership  of  personal  property  may  be  transferred 
by  operation  of  the  lavi^  in  any  of  the  following  manners : 

(1)  By  forfeiture,  (2)  succession,  (8)  judgment,  (-l)  in- 
testacy,   (5)   insolvency,  and   (6)   marriage. 


CHAPTER  XIV. 
EQUITY  JURISPRUDENCE. 

Equity  is  that  system  of  jurisprudence  which  was  orig- 
inally administered  by  the  High  Court  of  Chancery  in 
England,  and  is  now  administered  by  courts  having  equity 
jurisdiction  in  this  country. 

This  definition  (which  is  about  the  only  accurate  one 
which  can  be  given  in  order  to  convey  any  clear  idea  as  to 
the  character  and  scope  of  this  branch  of  jurisprudence) 
needs  to  be  supplemented  by  a  brief  historical  statement 
of  the  origin  and  development  of  equity  jurisprudence. 

Equity  came  into  existence,  as  a  distinct  system  of  juris- 
prudence, sometime  in  the  fourteenth  century,  for  the  pur- 
pose of  giving  relief  in  those  cases,  where  the  common  law 
courts,  on  account  of  the  rigidity  of  the  common  law  at 
that  period,  Avere  unable  to  take  jurisdiction.  The  exact 
classes  of  cases  over  Mdiieh  equity  assumed  jurisdic- 
tion were  therefore,  in  a  way,  the  result  of  historical  ac- 
cident. The  classes  of  cases  over  which  equity  to-day  has 
jurisdiction  are,  in  the  main,  those  classes  of  cases,  where 
the  common  law  courts  of  the  fourteenth  century  granted 
no  relief,  and  which  began  to  come  before  the  courts  dur- 
ing, what  may  be  referred  to  as,  the  formulative  period  of 
equity  jurisprudence.  This  period  may  be  taken,  roughly, 
as  covering  the  three  hundred  years  terminating  about 
1625.  During  this  period  the  equity  judges  had  the  power 
to  take  jurisdiction,  by  their  own  volition,  of  new  causes 
of  action  as  they  arose,  and  to  create  new  remedies  to  meet 
the  demands  of  new  conditions.  About  the  end  of  the 
reign  of  James  I,  this  power  was  lost  by  the  equity  (or 
Chancery)  judges,  and  the  general  boundaries  of  equity 
jurisprudence  became  fixed.  From  this  time  on,  the  equity 
judges  have  had  no  more  power  to  extend  the  jurisdiction 
of  their  courts,  than  have  the  common  law  judges. 

Ill 


112  putney's  bar  examinatioi\  review 

Equity  was  from  the  outset  a  supplemental  system  of 
law.  From  this  fact  grew  the  great  principle  that  equity 
will  never  take  jurisdiction  where  there  is  a  •complete  and 
adequate  remedy  at  common  law. 

Concurrent  Jurisdiction  of  Law  and  Equity. 

In  spite  of  the  fact,  however,  that  equity  was  created 
to  take  jurisdiction  where  the  common  law  did  not  take 
jurisdiction,  there  are  a  few  classes  of  cases  where  equity 
and  common  law  courts  have  concurrent  jurisdiction.  Such 
concurrent  jurisdiction  may  arise  in  several  ways. 

(1)  Equity  may  take  jurisdiction  where  there  is  a  com- 
mon law  remedy,  which,  however,  is  not  complete  and  ade- 
<(uate ;  e.  g.,  the  action  of  account. 

(2)  Where  equity  once  acquires  jurisdiction  it  keeps  it, 
even  although  a  complete  and  adequate  remedy  at  common 
law  is  afterwards  created. 

(3)  Equity  courts  may  be  given  jurisdiction  by  stat- 
ute over  a  class  of  cases  where  there  is  already  a  common 
law  remedy. 

Equitable  Maxims. 

There  are  thirteen  principal  equitable  maxims.  These 
maxims  are  of  great  importance,  and  a  very  large  part  of 
the  whole  subject  of  equity  jurisprudence  can  be  directly 
deduced  from  them.     These  maxims  are  as  follows : 

(1)     Equity   follows  the   law. 

This  maxim  emphasizes  the  fact  that  equity  is  a  sup- 
plemental system  of  law.  Equity  is  bound  by  all  the  posi- 
tive rules  of  the  common  law,  and  can  only  act  in  cases 
where  the  common  law  does  not.  Equity  is  bound  by  the 
rules  of  the  common  law  on  substantive  law,  by  the  pro- 
visions of  the  statute  of  limitations  and  by  the  common 
law  rules  of  evidence.  This  latter  is  perhaps  the  most  ex- 
treme application  of  the  rule,  as  the  common  rules  of  evi- 
dence were  mainly  framed  with  the  view  of  excluding  im- 
l)roper  evidence  from  the  jury,  and  are  therefore  not  well 
suited  in  their  nature,  for  equity  trials  where  juries  are 
verv  rarelv  found. 


EQUITY    JURISPRUDENCE  113 

(2)  Equity  will  not  suffer  a  right  to  be  without  a 
remedy. 

This  maxim  is  not  entirely  true  at  the  present  time,  but 
during  the  formulative  period  of  equity  was  the  underly- 
ing principle  upon  which  equity  jurisprudence  was  built  up. 

(3)  lie  who  comes  into  equity  must  come  with  clean 
hands. 

(■4)     He  who  seeks  equity  must  do  equity. 

The  dividing  line  between  these  two  maxims  is  a  time 
one;  the  former  relates  to  what  has  taken  place  before 
the  institution  of  the  suit,  the  latter  refers  to  what  the 
complainant  must  stand  ready  to  do  during  the  course  of 
the  proceedings.  By  the  former  maxim  it  is  meant  that 
equity  Avill  not  aid  anyone  who  himself  has  been  guilty  of 
any  unfairness  relative  to  any  phase  of  the  general  pro- 
ceedings concerning  which  he  seeks  relief;  while  the  latter 
maxim  contains  the  principle  that  an  equity  court,  as  a 
condition  for  granting  the  relief  sought  by  the  complain- 
ant, can  compel  him  to  do  whatever  the  court  thinks  neces- 
sary to  do  complete  justice  betAveen  the  parties ;  even  if  the 
act  required  by  the  complainant,  as  a  condition  for  ob- 
taining the  relief  he  seeks,  is  such  that  it  could  not  have 
been  decreed  against  him  in  an  original  suit  in  which  he 
was  defendant. 

(5)  Equity  looks  at  the  intent  rather  than  the  form. 
This   is   true   to    a   certain   extent    in   the    common   law 

courts,  but  to  a  much  greater  extent  in  the  equity  courts. 

(6)  Equity  aids  the  vigilant  and  not  those  who  slumber 
on  their  rights. 

This  maxim  is  generally  applied  in  cases  where  one  of 
two  innocent  parties  must  suffer. 

Under  this  maxim  a  court  of  equity  may  refuse  to  grant 
relief  on  account  of  delay,  even  when  the  period  of  such 
delay  is  less  than  the  period  specified  by  the  statute  of 
limitations. 

(7)  Equality  is  equity;  or,  equity  delighteth  in  equality. 
The  meaning  of  this  maxim  is  shown  by  the  doctrine  of 

contribution,  where  is  found  its  chief  application. 


114  putney's  bar  examination  review 

(8)  Between  equal  equities,  the  law  will  prevail. 

In  such  cases  there  is  no  reason  for  equity  to  interfere 
in  favor  of  either  party,  and  the  one  who  holds  the  legal 
title,  therefore,  prevails. 

(9)  Between  equal  equities  priority  of  time  will  prevail. 
This  principle  is  only  applied  as  a  last  resort,  and  when 

there  is  no  other  distinction  which  can  be  made  between 
the  rights  of  the  parties. 

(10)  Equity  acts  in  personam  and  not  in  rem. 

This  is  the  second  of  the  maxims  which  is  not  entirely 
true.  Formerly  all  decrees  in  equity  were  against  the  per- 
son of  the  litigant  and  could  only  be  enforced  by  punish- 
ing the  litigant  for  contempt  of  court  if  he  failed  to  carry 
out  such  decrees,  or  orders,  of  the  court.  As  a  result  of 
this  rule  an  equity  court  could  enter  a  decree  affecting  land 
outside  of  its  jurisdiction,  provided  only  it  had  jurisdic- 
tion of  the  person  of  the  party  against  whom  the  decree 
was  directed. 

Equity  courts  still  retain  their  full  power  to  act  in  per- 
sonam, but  have  in  addition  been  given  the  power  to  act 
in  rem  in  certain  cases,  as,  for  example,  in  the  foreclosure 
of  mortgages. 

(11)  .  Equity  acts  specifically  and  not  by  way  of  com- 
pensation. 

Where  the  only  relief  sought  is  pecuniary  damages 
against  the  defendant,  there  is  always  a  complete  and  ade- 
quate remedy  at  common  law.  AVhen  equity  properly  ob- 
tains jurisdiction,  on  account  of  some  feature  of  the  con- 
troversy, which  cannot  go  before  the  common  law  courts, 
the  equity  court,  in  order  to  prevent  the  necessity  for  a 
multiplicity  of  suits,  may  give  damages  in  connection  witli 
the  peculiarly  equitable  relief  sought. 

(12)  Equity  considers  that  as  done  which  ought  to  be 
done. 

This  maxim  will  never  be  applied  in  favor  of  the  person 
who  should  have  done  the  act  but  did  not. 

The  doctrine  of  equitable  conversion  is  an  application  of 
this  maxim.     Under  the  doctrine  of  equitable  conversion, 


EQUITY   JURISPRUDENCE  115 

where  the  testator  in  a  Avill  provides  that  personal  prop- 
erty shall  be  turned  into  real  property,  or  real  property 
into  personal  property,  equity  will  consider  it  as  being  al- 
ready the  class  of  property  into  which  it  has  been  directed 
that  it  shall  be  converted. 

(13)     Equity  imputes  an  intention  to  fulfill  an  obligation. 

Under  this  maxim  whenever  a  person  being  under  either 
a  moral  or  legal  obligation  to  do  a  certain  thing,  does  an 
act  which  may,  or  may  not,  have  been  intended  as  a  ful- 
fillment of  this  obligation,  equity  will  impute  an  intention 
to  fulfill  the  obligation,  and  hold  that  the  act  was  done 
with  the  purpose  of  fulfilling  such  obligation.  The  whole 
subject  of  resulting  trusts  is  closely  connected  with  this 
maxim. 

Divisions  of  Equity  Jurisprudence. 

The  four  great  divisions  of  equity  jurisprudence  are  as 
follows : 

1.  Equitable  titles. 

2.  Equitable  rights. 

3.  Equitable  remedies. 

4.  Those  cases  where  equity  takes  jurisdiction  on  ac- 
count of  the  character,  mutual  relations,  or  number  of  the 
parties. 

Trusts. 

Equitable  titles  are  those  which  are  recognized  and  en- 
forced by  the  courts  of  equity,  but  not  by  the  common  laAv 
courts.  The  great  subdivision  of  equitable  titles  is  that 
of  trusts. 

A  trust  in  the  most  enlarged  sense,  in  which  that  term 
is  used  in  English  jurisprudence,  may  be  defined  to  be  an 
equitable  right,  title,  or  interest  in  property,  real  or  per- 
sonal, distinct  from  the  legal  ownership  thereof.  (Story's 
Equity,  C.  964.) 

The  essential  element,  Avhieh  must  exist  in  the  case  of 
every  trust,  is  the  separation  of  the  legal  title  from  the 
beneficial  use. 

Uses   (A^'hich  was  the  early  term  for  trusts)   were  intro- 


116  putney's    bar   examination    UEVIEW 

duced  into  England  near  the  beginning  oi'  the  fourteenth 
century  to  avoid  the  effect  of  the  statute  of  Mortmain 
(1269)  which  prohibited  any  further  lauds  being  granted 
to  the  church.  The  use  was  an  imitation  of  the  tidei  com- 
missii  of  the  Roman  law.  In  1392  the  granting  of  land  to 
any  person  to  hold  for  the  use  of. a  K'ligious  body,  was 
prohibited  by  statute.  By  this  time,  however,  the  use  had 
become  well  established  in  England,  and  continued  to  be 
used  for  many  purposes,  some  legitimate  and  others  not 
so  legitimate.  Among  the  early  purposes  for  which  the 
use  was  used  were  to  transfer  land  (i.  e.,  the  beneficial  in- 
terests therein)  without  the  necessity  of  livery  of  seisin,  to 
avoid  the  incidents  of  the  feudal  tenure,  to  prevent  the 
forfeiture  of  lands,  and  to  defraud  creditors.  Upon  the  ac- 
cession of  the  House  of  Tudor  to  the  English  throne  (1485) 
there  began  the  passage  of  a  series  of  statutes  directed 
against  uses,  which  culminated  in  the  passage  of  the  Stat- 
ute of  Uses  in  1535. 

The  purpose  of  the  Statute  of  Uses  was  to  abolish  passive 
uses.  The  statute  attempted  to  do  this,  not  directly,  by 
prohibiting  the  creation  of  such  uses,  but  indirectly,  by 
providing  that  when  a  passive  use  Avas  created,  the  legal 
title  and  the  beneficial  use  should  be  at  once  re-united 
(thus  doing  away  with  the  use)  and  that  the  person  holding 
the  beneficial  use  should  also  take  the  legal  title.  This 
statute,  by  its  terms,  was  not  to  apply  to  uses  of  the  fol- 
lowing classes: 

1.  Active  uses. 

2.  Contingent  uses. 

3.  Uses  for  the  use  of  married  women. 

4.  Uses  in  personal  property  (including  interests  in  real 
property  classed  as  personal  property). 

The  main  purpose  of  the  Statute  of  Uses  was  entirely 
frustrated  by  a  decision  by  the  common  law  courts,  ren- 
dered soon  after  the  passage  of  the  statute.  This  decision 
was  to  the  effect  that  the  statute  could  not  operate  twice 
relative  to  the  same  transaction.  Tn  other  words,  that  where 
there  was  a  grant  to  "A"  for  the  use  of  ''B"  for  the  use 


EQUITY    JURISPRUDENCE  117 

of  "C"  (or  in  trust  for  "C)  that  the  .statute  would  op- 
orate  to  transfer  the  legal  title  from  "A"  to  "B,"  but 
that  having  thus  acted  once,  it  had  exhausted  its  force 
so  far  as  this  particular  transaction  was  concerned  and 
could  not  operate  once  more  to  transfer  the  legal  title 
from  "B"  to  ''C."  The  equity  judges  then  stepped  in, 
and  held  (in  substance)  that  they  "would  follow  the  law" 
and  hold  the  legal  title  to  be  in  "B,"  but  that  they  would 
also  compel  "B"  to  carry  out  the  intention  of  the  grantor, 
and  hold  such  legal  title  for  the  benefit  of  "C."  The  Stat- 
ute of  Uses  thus  absolutely  failed  to  accomplish  the  pur- 
pose for  w^hich  it  was  passed.  Instead  of  uses  being  abol- 
ished, they  became  established  on  a  firmer  basis  than  ever 
before.  From  this  time  on  uses  were  generally  known  as 
trusts. 

Classification  of  Trusts. 
Trusts  are  classified  in  several  different  ways.  The  most 
important  classification  is  that  into  express  trusts  and  im- 
plied trusts.  An  express  trust  is  one  created  by  express 
words  either  written  or  oral.  (Trusts  may  be  created  or- 
ally except  so  far  as  they  are  required  to  be  in  writing  by 
the  provisions  of  the  Statute  of  Frauds.)  An  implied  trust 
is  one  created  by  implication  of  law.  Implied  trusts  are 
subdivided  into  resulting  trusts  and  constructive  trusts. 
In  the  case  of  resulting  trusts  the  law  presumes  that  it  is 
carrying  out  the  intention  of  the  parties.  Constructive 
trusts  are  created  against  (or,  at  least,  regardless  of)  the 
intention  of  the  parties.  Fraud,  either  actual  or  potential, 
is  always  an  element  in  the  case  of  constructive  trusts.  The 
courts  either  consider  that  there  has  been  fraud  in  the 
transaction,  or  that  the  transaction  is  of  a  character  which 
offers  such  temptation  to  fraud,  that  all  transactions  of 
the  character  should  be  diseourged.  (The  above  is  the 
classification  of  trusts  as  adopted  by  American  authors. 
The  English  classification  is  somewhat  different.  Under 
this  latter  classification,  implied,  resulting  and  construc- 
tive trusts  are  three  separate  classes,  the  term  implied  trusts 
being  given  to  those  trusts  which  under  the  American  clas- 


118  putney's    bah    EXAMINATION'    REVIEW 

sification  are  considered  as  express  trusts,  created  by  j)reca- 
tory  words.) 

Precatory  words  ai-e  words  of  expectation,  hope,  desire, 
or  recoinraendation,  which  the  donor  uses  in  qualifying  an 
absolute  gift.  The  early  English  rule  was  in  favor  of 
holding  such  words  to  create  a  trust.  The  rule  at  present 
recognized  in  America  is  to  the  effect  that  precatory  words 
will  never  create  a  trust,  unless  it  otherwise  appears  that 
the  donor  intended  such  words  to  mean  that  the  donor  was 
to  hold  as  trustee  for  some  other  party. 

Trusts  are  also  divided  into  active  and  passive  trusts. 
An  active  trust  is  one  where  the  trustee  has,  or  may  have, 
some  act  to  perform  on  account  of  his  position  as  trustee. 
It  makes  no  difference  how  small  the  act  to  l)e  performed 
may  be.  A  passive  trust  is  one  where  the  trustee  merely 
holds  the  naked  title. 

A  further  classification  of  trusts  is  into  executed  and 
executory  trusts.  This  classification  is  made  from  the 
standpoint  of  the  settlor,  not  from  that  of  the  trustee. 
When  there  is  some  act  left  to  be  done  by  the  settlor,  the 
trust  is  an  executory  one,  when  nothing  remains  to  be  done 
by  the  settlor,  the  trust  is  executed. 

Parties  and  Subject-Matter  in  a  Trust. 

There  must  be  three  parties  in  the  case  of  every  trust : 
the  settlor,  who  creates  the  trust;  the  trustee,  who  holds 
the  legal  title;  and  the  cestui  que  trust,  who  has  the  bene- 
ficial use.  The  settlor  may  make  himself  either  trustee  or 
cestui  que  trust  in  the  trust  which  he  creates.  From  thf' 
very  nature  of  trusts,  the  trustee  and  the  cestui  que  trust 
cannot  be  the  same  person.  (The  trust  deed  used  as  a 
mortgage  sometimes  presents  at  least  an  apparent  excep- 
tion to  this  last  rule.) 

Any  person  who  has  the  power  to  dispose  of  his  prop- 
erty at  all  can  become  a  settlor.  Any  natural  person,  at 
least  temporarily,  may  become  a  trustee.  In  case  a  trus- 
teeship falls  upon  an  improper  person  equity  courts  have 
the  power  to  remove  such  trustee,  and  appoint  a  qualified 


EQUITY    JURISPRUDENCE 


119 


successor.    The  authority  of  a  corporation  to  act  as  trustee 
depends  upon  its  charter  and  the  provisions  of  the  state 

statute. 

Trustees  may  be  appointed  either  by  the  settlor  or  courts 
of  equity.  Resulting  and  constructive  trustees  become  so 
by  their  own  acts.  The  extent  of  the  estate  which  a  trus- 
tee will  take  is  determined  by  the  extent  of  the  beneficial 
interest  granted  to  the  cestui  que  trust.  The  trustee  will 
take  such  an  interest  as  will  enable  him  to  carry  out  the 
purpose  of  the  trust ;  if  the  legal  estate  granted  to  him  is 
more  than  sufficient  for  this  purpose  there  will  be  a  result- 
ing trust  back  to  the  settlor  as  to  the  balance  of  the  estate 
granted. 

The  first  duty  of  the  trustee  is  to  reduce  all  the  trust 
property  into  his  possession.  It  is  then  his  duty  to  take 
good  care  of  such  property  and  to  see  that  it  is  properly 
invested.  A  trustee  may  be  held  liable  for  the  damages 
resulting  either  from  a  failure  to  invest  trust  funds,  or 
from  their  investment  in  improper  securities. 

A  trustee  is  required  to  use  the  highest  possible  degree 
of  good  faith,  but  is  only  held  responsible  for  the  exercise 
of  a  reasonable  degree  of  skill,  ability,  and  energy. 

One  co-trustee  is  liable  for  the  wrongful  acts  of  another 
co-trustee,  when  such  acts  were  rendered  possible  by  his 
own  collusion  or  negligence. 

A  trustee  can  only  delegate  his  authority  when  the  act 
whose  performance  is  delegated  is  a  mere  ministerial  one, 
or  when  it  is  one  requiring  special  technical  skill. 

Any  person  may  be  a  cestui  que  trust,  except  as  pro- 
hibited by  statute. 

Any  property,  either  real  or  personal,  may  be  the  subject 
of  a  trust. 

Charitable  Uses. 

Charitable  uses  have  their  origin  in  the  Statutes  of 
Charitable  Uses,  which  enumerated  the  following  purposes 
for  which  charitable  uses  might  be  created: 

''The  relief  of  aged,  impotent,  and  poor  people;  the 
maintenance  of  maimed  and  sick  soldiers  and  mariners :  the 


120  putney's  bak  examination  review 

support  oi  schools  of  Icariimg,  ti«'e  seliools,  and  scliolars 
of  universities,  repairs  of  bridges,  ports,  havens,  causeways, 
churches,  sea-banks,  and  highways;  educational  and  pre- 
ferment of  orphans;  the  relief,  stock,  jtnd  maintenance  of 
houses  of  correction;  marriage  of  poor  maids;  and  help  to 
young  tradesmen,  handicraftsmen,  and  persons  decayed; 
relief  or  redemption  of  prisoners  and  captives;  aid  of  poor 
inhabitants  concerning  payments  of  fifteenths,  setting  out 
of  soldiers,  and  other  taxes."  Similar  statutes  exist  in  most 
of  the  states  in  this  country.  Two  peculiarities  of  the  law 
governing  charitable  uses  must  be  noticed;  the  first  being 
the  application  of  the  "cy  pres"  doctrine,  and  the  second, 
the  fact  that  the  rules  against  perpetuities  and  accumula- 
tions do  not  apply.  The  cy  pres  doctrine  is  the  effect  that 
when  the  exact  object  of  a  charitable  use  becomes  imprac- 
tical, but  it  appears  that  the  testator  intended  at  all  events 
to  give  the  property  for  some  charitable  purpose,  the  courts 
of  equity  will  apply  the  trust  property  to  some  other  char- 
ity, which  resembles  the  particular  charity  designated  by 
the  settlor,  as  nearly  as  possible.  The  English  rule  on  this 
subject  is  given  full  force  in  a  few  states  in  this  country, 
in  some  other  states  it  is  adopted  in  a  modified  form,  while 
in  still  other  states  it  is  rejected  entirely. 

The  Rule  Against  Perpetuities  and  the  Rule  Against 
Accumulations. 

The  rule  against  perpetuities  is  a  rule  of  law  which  was 
originated  for  the  purpose  of  preventing  owners  of  prop- 
erty from  controlling  the  disposition  and  management  of 
such  property  for  more  than  a  certain  period  after  their 
own  deaths.  The  period  specified  by  this  rule  is  that  covered 
by  a  life,  or  lives,  in  being,  and  twenty-one  years  and  nine 
months  after  the  death  of  the  last  survivor.  This  rule 
limits  grants  or  devises  by  way  of  use,  or  in  the  form  of 
executory  devises.  It  does  not  apply  to  contingent  re- 
mainders (the  creation  of  which  are  restricted  by  so  many 
other  rules,  that  the  application  of  this  rule  is  not  nec- 
essary). 


EQUITY    JUKISPKUDENCE  121 

The  rule  against  accumulations  (which  is  a  recent  addi- 
tion to  the  law  both  in  England  and  in  America)  limits 
the  period  during  which  ac(;umulations  may  be  provided 
for  (i.  e.,  the  continued  addition  of  the  income  to  the  prin- 
cipal) to  one  of  the  three  following  periods : 

1.  The  lifetime  of  the  settlor. 

2.  The  minority  of  persons  in  esse. 

;i.     Twenty-one  years  after  the  death  of  the  settlor. 

Mortgages. 

A  mortgage  is  a  conveyance  of  property  (either  real  or 
personal)  to  be  held  as  security  for  the  payment  of  a  debt, 
or  the  performance  of  an  act,  and  to  revert  to  the  grantor 
(i.  e.,  the  mortgagor)  when  the  debt  is  paid  or  the  act 
performed. 

Under  the  early  common  law  there  were  three  forms  of 
conveyances  of  property  as  security  for  debt. 

Under  the  vivuiii  vadium,  or  living  pledge,  the  rents  and 
profits  of  the  pfoperty  transl'pn-(Ml  as  security  were  applied 
towards  the  payment  of  the  debt,  and  when  this  liad  been 
paid,  both  i)rineipal  and  interest,  the  property  reverted,  free 
and  clear,  to  the  grantor. 

Under  a  mortuum  vadium,  or  dead  pledge,  or  mortgage, 
the  debt  could  neither  be  extinguished  nor  reduced,  nor 
even  the  interest  on  the  loan  paid,  out  of  the  returns  from 
the  property.  Unless  in  the  mortgage,  the  mortgagor  ex- 
pressly reserved  the  riglit  to  retain  possession  of  the  mort- 
gaged property,  the  mortgagee  had  the  right  to  enter  the 
property,  and  collect  and  appropriate  the  rents  and  profits 
thereof,  without  being  under  the  obligation  to  ever  account 
for  the  same  to  the  mortgagor. 

In  a  Welsh  mortgage  there  was  an  exchange  of  the  use 
of  the  money  for  the  use  of  the  land.  Under  such  a  mort- 
gage the  mortgagee  always  took  possession.  The  mort- 
gagor could  redeem  by  repaying  the  amount  of  the  loan 
Avithout  interest,  but  the  mortgagee  was  not  obliged  to  ac- 
count for  the  income  from  the  property  while  it  Avas  in  his 
possession. 


122  putney's  bah  examination  review 

The  common  law,  in  the  case  of  a  mortgage,  looked  en- 
tirely at  the  form  of  the  instrument  rather  than  at  its  in- 
tent. A  mortgage  on  its  face  granted  an  estate  in  fee  to 
the  mortgagee  liable  to  be  defeated  by  the  fulfillment  of  a 
condition  subsequent.  The  condition  subsequent  being  the 
re-payment  of  the  loan.  The  mortgagee  had  the  present  le- 
gal title,  and  the  mortgagor  retained  merely  a  possibility 
of  reverter.  As  the  common  law  courts  looked  with  dis- 
favor upon  the  loss  of  a  present  legal  estate,  through  the 
instrumentality  of  a  condition  subsequent,  the  result  was 
that  the  right  of  a  mortgagor  to  redeem  the  property  was 
very  strictly  construed,  and  if  the  debt  was  not  paid  (or 
the  act  done,  as  the  case  might  be)  within  the  time  speci- 
fied in  the  mortgage,  the  right  of  the  mortgagor  w^as  gone 
forever. 

Relief  from  this  state  of  affairs  which  in  many  cases 
worked  the  greatest  hardship,  was  found  in  equity.  Equity 
took  jurisdiction  in  such  cases  gradually,  at  first  allowing 
redemption  only  in  cases  where  the  failure  to  pay  within 
the  specified  time  was  occasioned  by  fraud,  mistake  or  ac- 
cident, but  later  allowing  redemption  by  the  mortgagor  in 
all  cases. 

It  was  soon  found  that  allowing  a  mortgagee  to  redeem 
at  any  time  worked  a  hardship  on  the  mortgagee  as  the 
latter  could  never  get  a  secure  title  to  the  property.  To 
remedy  this  the  mortgagee  was  permitted  to  come  into 
court  and  shut  off  the  mortgagor's  rights,  by  foreclosing 
the  property. 

Tliere  are  two  principal  methods  of  foreclosure:  Under 
strict  foreclosure  the  title  of  the  property  is  decreed  ab- 
solutely to  the  mortgagee ;  under  equitable  foreclosure  the 
property  is  sold,  any  proceeds  above  the  amount  of  the 
debt  (with  costs)  paid  to  the  mortgagor,  a  deficiency  judg- 
ment given  against  the  mortgagor  in  cases  where  the  prop- 
erty fails  to  bring  the  amount  of  the  debt,  and  the  mort- 
gagor given  a  certain  time  to  redeem  the  property  from 
the  purchaser,  at  the  end  of  which  time,  the  property  (if 
not  redeemed)  becomes  absolutely  the  property  of  such 
purchaser. 


EQUITY    JURISPRUDENCE 


123 


In  some  states  mortgages  may  be  foreclosed  under  a 
power  of  sale  contained  in  the  mortgage.  Some  states 
also  permit  the  foreclosure  of  a  mortgage  by  a  common  law 
action. 

Under  the  modern  view  of  a  mortgage  the  debt  is  con- 
sidered as  the  principal  thing  and  the  mortgage  merely  as 
a  security  for  its  payment.  The  interest  of  a  mortgagee  is 
therefore   classed   as  personal   property. 

A  sale,  with  the  right  of  re-purchase  reserved  to  the 
vendor  will  be  considered  as  a  mortgage  if  this  appears  to 
have  been  the  real  nature  of  the  transaction. 

Equitable  Liens. 

Equitable  liens  differ  from  common  law  liens  in  two  im- 
portant respects.  Equitable  liens  arise  from  acts  of  the 
parties ;  common  law  liens  are  created  by  law.  In  equitable 
liens  the  party  in  whose  favor  the  lien  exists  never  has  pos- 
session of  the  property  which  is  the  subject  of  the  lien; 
in  common  law  liens  the  party  holding  the  lien  always  has 
such  possession. 

Equitable  Rights. 

By  equitable  rights  are  meant  such  rights,  either  for  the 
purpose  of  securing  redress,  or  for  defense,  as  are  only  rec- 
ognized, or  more  fully  recognized,  in  equity. 

Fraud. 

The  following  classification  of  fraud  is  that  given  by 
Lord  Hardwicke,  in  the  famous  case  of  Earl  of  Chester- 
field vs.  Janssen. 

1.  Frauds  arising  from  facts  and  circumstances  of  im- 
position. 

2.  Frauds  presumed  from  the  circumstances  and  condi- 
tion of  the  parties. 

3.  Frauds  apparent  from  the  intrinsic  nature  and  sub- 
ject-matter of  the  bargain. 

4.  Frauds  which  are  an  imposition  and  deceit  on  third 
persons  not  parties  to  the  transaction. 

The  first  class  comes  under  the  head  of  actual  fraud,  the 
last  three  under  the  head  of  constructive  fraud.     In  every 


124  PUTXEV'^J    BAR    EXAMINATION    KEVIEW 

<-nsc  or  actual  traiul,  tlit^re  must  Ik'  present  those  elements 
required  in  the  tort  action  for  deceit. 

Under  the  English  doctrine  the  jurisdiction  of  equity 
extends  over  every  case  of  fraud,  either  actual  or  construc- 
tive. Under  the  American  rule,  according  to  the  weight 
of  authority,  equity  only  has  jurisiljetion  -where  there  is 
no  adequate  remedy  at  law. 

The  relief  which  can  be  granted  by  a  court  of  equity  in  the 
case  of  fraud  is  the  cancellation,  or  reformation  of  the  con- 
tract or  written  instrument,  or  the  awarding  of  pecuniary 
relief  (where  equity  properly  obtains  jurisdiction.)  Equity 
may  also  enjoin  the  prosecution  of  a  claim  which  is  bastnl 
upon  fraud. 

In  cases  of  duress  or  undue  iuliuence.  equity  may  grant  the 
same  relief  as  in  cases  of  fraud. 

Mistake. 

Mistake,  in  a  legal  sense,  exists  whenever  a  person,  on 
account  of  some  erroneous  conviction,  executes  an  instru- 
ment, or  does  an  act.  v.diich  he  would  not  have  executed 
or  done,  except  for  the  erroneous  conviction. 

^Mistakes  may  be  either  of  law  or  of  fact.  Equity  will 
relieve  against  mistakes  of  fact,  but  not  against  mistakes 
of  law.  There  are  three  classes  of  apparent  mistakes  of 
law  which  are  considered  as  mistakes  of  fact,  and  therefore 
relieved  against.     These  apparent  mi.stakes  of  law  are: 

1.  ^Mistakes  as  to  foreign  laws. 

2.  Mistakes  as  to  private  statutes. 

3.  ^Mistakes  of  fact  which  arise   from  mistakes  of  laAV. 
Mistakes   as   to    ownership    are    common   illustrations   of 

this  last  class. 

Among  the  important  kind  of  mistakes  of  fact,  which 
equity  often  relieves  against,  are  mistakes  as  to  the  exist- 
ence, identity  or  quantity  of  the  subject-matter  of  the  con- 
tract. 

Tn  order  for  a  mistake  to  be  relievable  it  must  be  mu- 
tual:  or  there  must  be  mistake  on  one  side  joined  with 
fraud  on  the  other.     In  this  latter  case,  it  perhaps  would 


EQUITY    JUKISPRUDENCK  12.') 

be  more  accurate  to  say  that  the  ground  upon  which  equity 
grants  relief  is  the  fraud,  rather  than  the  mistake. 

Equity  will  relieve  against  the  mistake  of  a  third  party 
who  was  employed  to  reduce  the  terms  of  a  contract  to 
writing. 

The  two  forms  of  relief  which  equity  courts  can  give  in 
the  case  o'l  mistakes  are  the  correction  or  cancellation  of 
the  contract. 

Accident. 

Tlie  majority  of  definitions  given  of  accident  are  inac- 
curate (i.  e.,  of  the  term  as  used  in  equity).  The  best  defi- 
nition is  that  by  Pomeroy  (Equity  Jurisprudence,  Sec.  79)  : 
"Accident  is  an  unforeseen  and  unexpected  event,  occur- 
ring externally  to  the  party  affected  by  it,  and  of  which 
his  own  agency  is  not  the  proximate  cause,  whereby  con- 
trary to  his  OAvn  intention  and  wish,  he  loses  some  legal 
right  or  becomes  subject  to  some  legal  liability,  and  another 
person  acquires  a  corresponding  legal  right,  which  it  would 
be  a  violation  of  good  conscience  for  the  latter  person  in 
the  circumstances,  to  retain." 

Accident  may  be  distinguished  from  mistake  as  follows : 
Mistake  is  subjective  (i.  e.,  in  the  minds  of  the  parties j, 
while  accident  is  objective.  Again  mistake  takes  place 
(if  it  takes  place  at  all)  at  the  time  the  contract  is  en- 
tered into,  while  accident  happens  after  the  contract  has 
been  made  or  the  right  acquired  which  suffers  injury  by 
the  accident. 

Among  the  classes  of  accidents  in  which  equity  will  grant 
i-elief  are  those  of  lost  instruments,  defective  execution 
of  powers,  judgments  at  law.  penalties  and  forfeitures. 

Penalties   and  Forfeitures. 

Equity  looks  with  great  disfavor  upon  both  penalties  and 
forfeitures.  Equity  courts  will  never  enforce  either,  and 
in  proper  eases  will  relieve  against  them, 

A  penalty  is  a  certain  sum  of  money  to  be  paid  upon 
failure   to   perform   a   certain   agreement   according   to    its 


126  putney's  bar  examination  review 

tenure.     A  forfeiture  in\olves  tlie  loss  of  existing   rights 
in-  certain  specific  property. 

Neither  alternative  stipulations,  agreements  for  the  re- 
duction of  an  existing  debt  ui)on  prompt  payment,  nor 
liquidated  damages  are  considered  as  penalties.  Equity 
courts,  however,  will  be  guided  by  the  real  nature  of  the 
transaction  rather  than  by  the  name  which  the  parties 
thereto  have  chosen  to  give  to  it.  When  the  parties  to  a 
contract  estimate  in  advance  what  the  damages  from  the 
breach  of  a  contract  will  be,  and  stipulate  that  in  case  of 
such  breach  such  sum  shall  be  paid,  this  will  constitute  a 
true  case  of  liquidated  damages ;  but  if  the  amount  of  such 
damages  bears  no  true  relation  to  the  real  damage  from 
the  breach,  equity  courts-  will  consider  the  alleged  liqui- 
dated damages  as  being  in  reality  a  penalty,  and  treat  it 
as  such.  This  will  always  be  the  case  where  the  same  dam- 
ages are  to  be  paid  for  a  small  breach  of  the  contract  as 
for  a  greater  one. 

Contribution,  Exoneration  and  Subrogation. 

Contribution  groMs  out  of  the  maxim  "Equality  is 
Equity."  Where  one  of  several  persons  jointly  liable  for 
a  debt  pays  the  entire  debt  he  is  entitled,  under  this  doe- 
trine  of  contribution,  to  recover  a  pro  rata  share  from  each 
of  the  other  persons  liable.  Except  in  a  very  few  cases, 
the  doctrine  of  contribution  will  not  exist  among  joint  tort 
feasors. 

Common  law  courts  now  recognize  and  enforce  this  right 
of  contribution,  but  the  relief  here  granted  is  not  as  com- 
plete (in  some  cases)  as  that  given  by  equity.  If  one  of  the 
parties  jointly  liable  is  insolvent,  or  for  any  other  reason 
no  recovery  against  him  is  possible,  the  portion  which  the 
one  who  has  paid  the  debt  can  recover  from  the  others, 
is  at  common  law  based  upon  the  whole  number  of  persons 
who  were  originally  liable,  while  in  equity  it  is  based 
upon  the  number  against  whom  recovery  is  possible. 

The  rights  of  exoneration  and  subrogation  often  exist 
together.     Exoneration    is   the    right   in    personam   against 


EQUITY    JURISPRUDENCE  127 

the  party  primarily  liable  on  a  debt,  which  exists  in  favor 
of  a  person  who  was  secondarily  liable  on  such  debt  (or 
who  was  obliged  to  pay  such  debt  in  order  to  protect  his 
property)  and  who  has  paid  such  debt  to  the  creditor. 

This  right  is  supplemented  by  that  of  subrogation,  un- 
der which  a  person  who  has  paid  a  debt  under  the  condi- 
tions specified  in  the  last  paragraph,  is  entitled  to  the 
benefit  of  all  securities  which  the  principal  debtor  has 
given  to  the  creditor.  If  a  creditor  releases  securities  of 
the  principal  debtor  which  he  holds,  the  liabilitj''  of  the  sec- 
ondary debtor  to  the  creditor  is  released  pro  tanto.  A 
creditor  is  entitled  to  the  benefit  of  subrogation  relative 
to  all  securities  which  the  principal  debtor  has  given  to 
his  surety. 

Accounting. 

The  equitable  action  of  account  only  lies  in  those  cases 
where  the  common  law  action  of  account  is  not  an  adequate 
remedy.  It  is  held  that  a  person  is  entitled  to  an  account- 
ing in  equity  in  any  one  of  the  five  following  classes  of 
cases : 

(1)  Where  there  are  mutual  accounts. 

(2)  Where  the  accounts  are  very  complex. 

(3)  Where  the  defendant  holds  a  fiduoiary  position 
relative  to  the  plaintiff. 

(4)  Where  the  facts  relative  to  the  transaction  are  pe- 
culiarly within  the  knowledge  of  the  defendant. 

(5)  Where  discovery  is  sought. 

Marshaling. 

The  doctrine  of  the  marshaling  of  assets  was  thus  stated 
in  the  case  of  Webb  vs.  Smith  (30  Cha.  Dev.,  190)  :  "If  A 
has  a  charge  upon  Whiteacre  and  Blackaere,  and  if  B  also 
has  a  charge  upon  Blackaere  onlj^  A  must  take  payment 
of  his  charge  out  of  AVhiteacre,  and  must  leave  Blackaere 
so  that  B,  the  other  creditor,  may  follow  it  and  obtain 
payment  of  his  debtant  of  it.  In  other  words,  if  two  es- 
tates (Whiteacre  and  Blackaere)  are  mortgaged  to  one  per- 
son,  and  subsequently  one   of  them    ''Blackaere)    is   mort- 


128  putney's  bar  examination  hevikvv 

gaged  to  another  person,  unless  Blackacre  is  sufficient  to 
pay  botli  charges,  the  first  mortgagee  will  be  compelled  to 
take  satisfaction  out  of  Whiteacre,  in  order  to  leave  Black- 
acre  to  the  second  mortgagee  upon  which  alone  he  can  go." 

Satisfaction  and  Performance. 

Under  the  doctrine  of  satisfaction  the  donation  of  a  thing 
will  be  taken  as  extinguishing  an  obligation  previously  ex- 
isting from  the  donor  in  favor  of  the  donee  unless  it  ap- 
pears to  have  been  the  intention  of  the  donor  that  the  ob- 
ligation should  continue  in  force.  There  may  be  either 
(1)  satisfaction  of  debts  by  legacies,  (2)  satisfaction  of 
legacies  by  subsequent  legacies,  (3)  satisfaction  of  legacies 
by  portions  and  advancements,  or  (4)  satisfaction  of  por- 
tions by  subsequent  legacies. 

The  doctrine  of  performance  is  that  when  a  person  is 
under  obligation  to  do  a  certain  act,  and  does  some  act 
which  may,  or  may  not,  have  been  intended  as  a  per- 
formance, of  the  duty,  equity  will  "imply  an  intention  to 
fulfill  an  obligation"  and  consider  the  duty  as  performed. 

Equitable  Estoppel. 

The  doctrine  of  equitable  estoppel  is  that  where  a  per- 
son by  his  words,  actions,  or  silence,  has  produced  an  er- 
roneous belief  in  some  other  person,  upon  which  belief 
such  person  relies  and  acts,  the  first  person  will  be  pre- 
vented from  setting  up  the  true  state  of  affairs,  to  the  in- 
jury of  the  persons  who  have  relied  on  his  statements  or 
actions. 

Notice. 

Notice  may  be  actual,  implied,  or  constructive.  Actual 
notice  is  notice  directly  brought  to  the  attention  of  a  party 
Implied  notice  is  notice  which  the  law  will  presume  a  per- 
son to  have  on  account  of  information  which  is  proved  to 
have  been  in  his  possession. 

Constructive  notice  is  the  notice  which  the  law  holds 
every  person  to  possess,  regardless  of  the  question  of  actual 
notice.     The  doctrine  of  constructive  notice  is  enforced  on 


EQUITY    JURISPRUDENCE  129 

the  ground  of  public  policy,  and  such  notice  will  ])p  held 
to  arise  from  the  following: 

(a)  Extraneous  facts,  generally  ;icts  of  fraud,  negli- 
gence or  mistake. 

(b)  The  possession  or  tenancy  of  the  party  claiming 
the  equity  or  title. 

(c)  Kecital  or  reference  in  instruments  of  title. 

(d)  Lis  Pendens,  i.  e.,  pending  suits  relative  to  the  par- 
ticular piece  of  real  property. 

(e)  Judgments,  when  properly  docketed. 

(f)  Registration  or  recording  of  instruments. 

Equitable  Remedies. 
The  most  important  remedies  are:  Specific  performance, 
injunctions,  discovery,  cancellation  and  reformation  of 
contracts  and  other  written  instruments,  establishment  of 
boundaries,  partition,  removal  of  clouds  from  title,  ne  exeat, 
interpleader,  and  the  appointment  of  receivers. 

Specific  Performance. 

One  of  the  most  important  e<iuitable  remedies  is  that  of 
specific  performance  of  contracts.  This  form  of  remedy 
will  only  be  employed  in  the  case  of  contracts,  whose  per- 
formance according  to  their  terms  is  possible  under  the  de- 
cree of  an  equity  court  and  where  pecuniary  damages  will 
not  be  an  adequate  remedy  for  the  breach  of  the  contract. 

There  may  ahvays  be  a  decree  for  the  specific  perform- 
ance of  a  contract  to  insure,  or  to  sell  real  property,  and 
there  may  be  a  decree  for  the  specific  performance  of  a 
contract  to  sell  personal  property  when  the  personal  prop- 
erty is  of  a  character  which  cannot  be  readily  purchased  in 
the  open  market. 

Equity  courts,  in  proper  cases,  may  even  decree  the  spe- 
cific performance  of  a  contract  with  a  slight  modification. 
The  specific  performance  of  contracts  of  partnership,  for 
personal  services,  to  marry,  or  to  pay  a  sum  of  money 
wnll  not  be  decreed  by  a  court  of  equity. 

Specific   performance   will   never  be   decreed   where   the 


130  I'LTNKV's    UAK    KX  A.MIN  A  I  II  )N     KKMI.W 

plaintiff  is  in  default,  wlioro  there-  is  a  lack  or  mutuality, 
or  where  specific  porforDiance  would  work  great  hardship 
on  the  defendant. 

Injunctions. 

An  injunction  is  a  writ  issued  by  a  court  of  equity  com- 
manding or  prohibiting  tlie  doing  of  a  certain  thing.  In- 
junctions are  generally  issued  in  connection  with  other 
relief. 

Injunctions  are  either  mandatory  or  prohil)itory.  A  man- 
datory injunction  commantls  a  certain  thing  to  be  done. 
Mandatory  injunctions  are  uncommon ;  when  used  they  are 
generally  for  the  purpose  of  ordering  the  defendant  to  un- 
do something  which  he  has  previously  done.  Prohibitory 
injunctions  forbid  the  doing  of  some  act. 

Injunctions  are  also  divided  into  interlocutory,  or  pre- 
liminary injunctions  and  final  or  perpetual  injunctions.  An 
interlocutory  injunction  is  one  issued  during  the  pendency 
of  the  suit;  a  final  injunction  is  one  issued  upon  the  final 
termination  of  the  suit.  The  court  which  issued  a  final 
injunction  always  has  the  power  to  modify  such  injunction. 

Injunctions  are  issued  for  a  great  variety  of  purposes, 
for  example:  Against  waste;  against  nuisances;  against 
trespasses  (but  only  in  cases  where  the  trespass  would  in- 
flict irreparable  damage,  or  there  are  repeated  trespasses, 
or  the  trespasser  is  financially  irresponsible)  ;  injunctions 
against  the  breach  of  a  negative  promise  in  a  contract 
(breach  of  affirmative  agreements  in  a  contract  are  redressed 
by  equity,  if  at  all,  by  means  of  a  decree  for  specific  per- 
formance) ;  injunctions  for  the  protection  of  patents,  copy- 
rights and  trademarks ,  and  injunctions  against  proceed- 
ings at  common  law. 

In  this  country  injunctions  wuU  generally  not  be  granted 
against  the  com.mission  of  a  tort,  although  there  are  some 
exceptions  to  this  rule.  It  was  formerly  considered  as  a 
well  settled  principle  of  equity  that  an  injunction  would 
never  be  issued  against  the  commission  of  a  criminal  act, 
but  the  recent  decisions  are  to  the  effect  that  Avhere  the 


EQUITY    JUKISPKUDENCE  131 

threatened  erimmal  act  will  also  be  an  invasion  of  the  rights 
of  property,  an  injunction  against  such  act  may  be  issued. 

Cancellation  and  Reformation. 

The  cancellation  of  a  written  instrument  may  be  decreed 
by  a  court  of  equity,  when  such  instrument  is  voidable  on 
the  ground  of  fraud  or  mistake,  or  while  absolutely  void, 
it  is  valid  on  its  face. 

Written  instruments  will  be  reformed  by  a  court  of  equity 
when  on  account  of  mutual  mistake,  or  mistake  on  one 
side  and  Fraud  on  the  other,  or  through  the  mistake  of  a 
third  person  employed  to  reduce  the  contract  to  writing, 
such  instrument  does  not  represent  the  true  intention  of 
the  parties. 

Equitable  Relief  Affecting  Real  Property. 
The    various    forms    of    relief    relative   to    real   property 
which  can  be  granted  by  a  court  of  equity  are :     The  parti- 
tion  of   property    among   co-owners;   the   establishment   of 
boundaries:  and  the  removal  of  clouds  from  title. 

Discovery. 

By  discovery,  as  the  term  is  used  in  equity,  is  meant 
the  securing  of  evidence  by  one  party  to  a  suit  from  his 
opponent.  Formerly  there  was  no  method  by  which  this 
could  be  done  at  common  law,  and  bills  for  discovery  might 
be  filed  in  equity  to  aid  suits  at  common  law.  This  pur- 
pose may  now  be  served  by  interrogations  in  common  law 
suits,  and  bills  for  discovery  alone  are  now  practically 
obsolete,  although  they  may  still  be  brought,  at  least  in 
some  states  (e.  g.,  Illinois). 

Ne  Exeat. 
The  writ   of  ne   exeat   prohibits   a    person   from   leaving 
the  jurisdiction  of  a  court,  before  which  a  suit  in  equity 
is  being  tried  to  which  he  is  a  party. 


132  putney's  hah  kx  ami  nation  uemlw 

Receivers. 

"A  receiver  is  a  person  slaiiding  iudilt'ereut  between  the 
parties,  appointed  by  the  court  as  a  (luasi-oflicer  or  repre- 
sentative of  the  court  to  hold,  manage,  control  and  deal 
with  the  property  which  is  the  sul)ject-matter  of  or  in- 
volved in  the  controversy,  under  the  direction  of  the  couit 
during  the  continuance  of  the  litigation,  either  wliere  there 
is  no  person  entitled  competent  to  thus  hold  it,  as,  for  ex- 
ample, in  the  case  of  an  infant,  or  in  the  interval  bet'oi-e 
an  executor  or  administrator  of  a  deceased  owner  is  ap- 
pointed; or  where  two  or  more  litigants  are  equally  en- 
titled, but  it  is  not  just  and  proi)er  that  either  of  them 
siiould  retain  it  under  his  control — as,  for  example,  in  some 
suits  between  partners ;  or  where  a  person  is  legally  entitled 
but  there  is  danger  of  his  misapplying  or  misusing  it,  as, 
for  example,  in  some  suits  against  an  executor  or  aciminis- 
trator,  or,  under  some  particular  circumstances  in  suits 
for  the  enforcement  of  a  mortgage;  or  he  is  appointed  in 
like  manner  and  under  like  circumstances  for  the  purpose 
of  carrying  into  effect  a  decree  of  the  court  concerning  the 
property — as,  for  example,  a  decree  for  winding  up  and 
settlement  of  a  corporation,  or  the  decree  in  a  creditor's 
suit."     (Pomeroy  on  Equity  Jurisprudence.  Sec.  1330.) 

Jurisdiction  of  Equity  on  Account  of  the  Character,  Rela- 
tion or  Number  of  the  Parties. 

At  common  law  a  married  woman  could  neither  sue  nor 
be  sued.  The  first  change  in  this  respect  was  made  by  the 
courts  of  equity,  which  permitted  married  women  to  sue  oi- 
be  sued  relative  to  their  separate  estates.  The  disability 
of  married  women  in  this  respect  has  now  been  very  gen- 
erally removed  by  statute. 

Neither  suits  between  husband  and  wife  or  between  part- 
ners will  be  entertained  by  common  law  courts ;  and  all 
litigation  between  parties  holding  these  relations  to  each 
other  must  be  Drought  in  equity 

In  order  to  prevent  multiplicity  of  suits  equity  will  ad- 


KUriTV    .IIHISI'UIDKXCK  1 1^;^ 

judicatc  the  mutually  diverse  interests,  in  the  same  sub- 
ject-matter, of  an  indefinite  number  of  parties.  At  eora- 
nion  law  while  there  ean  be  an  indefinite  number  of  either 
plaintifVs,  or  defendants,  provided  all  sueh  plaintiffs,  or  all 
such  defendants,  have  a  common  or  joint  interest,  but  three 
(or  more)  mutually  diverse  interests  cannot  be  adjudicated 
in  the  same  suit. 


CHAPTER  XV. 
PRIVATE  CORPORATIONS. 

A  corporation  i.s  a  body  created  by  law,  consisting  of  one 
or  more  individuals,  having  a  personality  distinct  from  that 
of  any  of  its  members,  and  possessed  of  a  franchise  by 
virtue  of  which  it  subsists  under  a  special  name,  with  the 
capacity  of  succession  either  perpetual  or  for  a  limited 
period. 

A  corporation  was  defined  by  Chief  Justice  IVlarshall  in 
the  famous  Dartmouth  College  case  in  the  following 
language : 

"A  corporation  is  an  artificial  being,  invisible,  intangible 
and  existing  only  in  contemplation  of  law.  Being  the  mere 
creature  of  law,  it  possesses  only  those  properties  which 
the  charter  of  its  creation  confers  upon  it,  either  expressly 
or  as  incidental  to  its  very  existence.  These  are  such  as 
are  supposed  best  calculated  to  effect  the  object  for  which 
it  was  created.  Among  the  most  important  are  immortal- 
ity, and,  if  the  expression  may  be  allowed,  individuality ; 
properties  by  which  a  perpetual  succession  of  many  per- 
sons are  considered  as  the  same,  and  may  act  as  a  single 
individual.  They  enalile  a  corporation  to  manage  its  own 
affairs,  and  to  hold  property  without  the  perplexing  in- 
tricacies, the  hazardous  and  endless  necessity  of  perpetual 
conveyances  for  the  purpose  of  transmitting  it  from  hand- 
to  hand.  It  is  chiefly  for  the  purpose  of  clothing  bodies 
of  men,  in  succession,  with  these  qualities,  and  capacities, 
that  corporations  w-ere  invented,  and  are  in  use.  By  these 
means,  a  perpetual  succession  of  individuals  are  capable  of 
acting  for  the  promotion  of  the  particular  object,  like  one 
immortal  being." 

Classification  of  Corporations. 

Corporations  are  divided  into  private  and  public  corpo- 
rations.   Private  corporations  are  those  which  are  organized 

134 


PRIVATE    CORPORATIONS  135 

and  exist  to  promote  the  private  interests,  either  financial 
or  other  interests,  of  its  members. 

A  quasi  public  corporation  is  one  organized  for  private 
profit,  to  engage  in  some  business  of  a  public  character. 
Railways  and  telephone  companies  are  examples  of  this 
species  of  corporations.  Quasi  public  corporations,  on  ac- 
count of  the  nature  of  their  business,  are  subjected  to  a 
greater  degree  of  public  control  than  other  private  cor- 
porations. 

A  corporation,  aggregate,  is  one  having  two  or  more 
members.  A  corporation,  sole,  is  one  with  but  a  single 
member  at  a  time.  This  latter  class  of  corporations  is  al- 
most unknown  in  this  country. 

Creation  of  Corporations. 

At  common  law,  corporations  could  Ije  created  either  by 
prescription,  royal  grant  or  legislative  action.  In  the 
United  States  a  corporation  can  only  be  created  by  legis- 
lative action.  In  general,  a  corporation  may  be  created 
either  by  special  or  general  act  of  the  legislative  body;  al- 
though in  some  states,  the  Constitution  prohibits  the  crea- 
tion of  a  corporation  by  .special  act. 

Corporations  may  be  created  either  by  the  National  gov- 
ernment, or  by  a  state  or  territorial  government. 

The  power  to  create  a  corporation  is  not  among  the  pow- 
ers expressly  granted  to  Congress  by  the  Constitution,  but, 
in  the  case  of  ]\[cCulloch  vs.  ^Maryland,  the  Supreme  Court 
of  the  United  States  decided  that  the  Federal  government 
had  the  power  to  create  a  corporation  when  such  corpo- 
ration would  assist  in  the  carrying  into  execution  of  any 
of  the  powers  granted  to  Congress.  At  the  present  time 
the  most  important  class  of  Federal  corporations  are  the 
United  States  banks:  the  United  States  also  has  the  power 
to  charter  corporations  to  engage  in  interstate  commerce. 

A  state  government  has  full  power  to  create  a  corpora- 
tion of  any  character,  subject  only  to  the  restrictions  con- 
tained upon  such  power  to  be  found  in  the  Federal  Con- 
stitution or  in  the  Constitution  of  the  particular  state. 


136  putney's  bak  examination  kevikw 

A  corporation  created  by  a  state,  is  not  a  citizen  of  tliat 
state  in  the  sense  the  term  is  used  in  tlie  United  States 
Constitution,  In  the  first  clause  of  the  second  section  of 
the  third  Article  of  the  Constitution,  the  phrase,  "between 
citizens  of  different  stat'^s,"  was  not  at  first  construed 
broadly  enough  to  give  the  Federal  Courts  jurisdiction 
over  suits  between  a  citizen  of  one  state,  and  a  corporation 
chartered  by  another  state.  Jurisdiction,  in  such  cases, 
has  since  been  acquired  by  the  Federal  Courts  by  means  oT 
the  legal  fiction  that  all  the  stockholders  of  a  corporation 
are  citizens  of  the  state  which  created  the  corporation. 

A  corporation  is  not  protected  by  the  constitutional  i)r()- 
vision  (Article  IV,  Section  2,  clause  1)  providing  that 
"The  citizens  of  each  state  shall  be  entitled  to  all  priv- 
ileges and  immunities  of  citizens  in  the  several  states''; 
but  is  protected  by  the  provision  in  the  Fourteenth  Amend- 
ment that  "No  state  shall  deny  to  any  person  M'ithin  its 
jurisdiction  the  equal  protection  of  the  laws."  It  there- 
fore follows  that  a  state  may  refuse  to  permit  a  corpora- 
tion created  by  anoth?r  state  to  do  l)usiness  within  its 
jurisdiction,  or  may  impose  conditions  whicli  it  must  fulfill 
before  it  can  be  admitted  to  do  business  in  the  state;  but 
after  such  a  corporation  has  once  been  admitted  into  a 
state,  the  state  cannot  discriminate  against  it.  A  state  can- 
not prevent  a  foreign  corporation  doing  business  within 
its  territory  from  removing  any  suit  w^hi(!h  may  be  brought 
against  it  into  the  Federal  Courts.  Some  states  attempt 
to  evade  this  principle  by  requiring  foreign  corporations  to 
agree  not  to  remove  cases  to  the  Federal  Court,  as  a  condi- 
tion precedent  to  their  being  allowed  to  do  business  in  the 
state.  The  decisions  are  in  conflict  upon  the  ([uestion 
whether  after  a  corporation  has  made  such  an  agreement 
and  then  removes  a  case  to  the  Federal  Courts  the  state 
may  deprive  it  of  its  right  to  continue  to  do  business  in 
the  state. 

Over  the  territory  belonging  to  the  United  States,  but 
not  included  within  the  limits  of  any  state  (i.  e.,  in  the  ter- 
ritories and  colonies),  the  Federal  government  possesses 
practically  unrestricted  powers.     It  would  have  the  right. 


PRIVATE    CUKPUKATIONS  137 

therefore,  to  create  a  corporation  to  be  located  within  one 
of  the  territories  for  any  purpose.  This  power  has  been 
delegated  by  the  National  government  to  the  Territorial 
governments.  These  latter  governments  have,  therefore, 
practically  the  same  power  to  create  corporations,  as  do  the 
state  governments. 

Powers  of  Corporations. 

All  powers  possessed  by  a  corporation  must  be  derived 
from  the  power  which  created  such  corporation.  Powers, 
however,  may  be  granted  eitber  expressly  or  by  implication. 

The  powers  of  a  corporation  may  be  divided  into  three 
classes : 

(1)  Powers  expressly   iiiantcd  ; 

(2)  Powers  implied  from  the  powers  expressly  granted; 

and 

(:i)  Those  ii:ii)lied  powris  wliieh  are  lield  to  belong  to 
all  eorporalions,  unless  denied  to  them,  either  expressly  oi' 
by  implication. 

The  last  class  uT  powei-s  inelude.  ;;mong  others:  The 
right  of  perpetual  or  continuous  succession;  the  right  to 
purchase  and  hold  property,  either  real  or  personal  for 
purposes  authorized  by  the  charter  of  the  corporation ;  the 
right  to  have  a  common  seal  and  the  right  to  make  by- 
laws; the  right  to  a  corporate  name;  and  the  right  to  con- 
tract, to  sue  and  be  sued. 

The  charter  of  a  corporation  is  to  be  construed  in  favor 
of  the  public  and  against  the  corporation.  The  grant  ol 
certain  powers  to  a  corporation,  excludes  all  other  powers, 
except  such  powers  as  are  implied  from  the  powers  ex- 
pressly granted,  and  such  powers  as  are  presumed  to  be- 
long to  all  corporations. 

:\ratters  relative  to  the  management  of  a  corporation 
which  are  not  regulated  either  by  statute  or  by  the  charter 
of  the  corporation  may  be  regulated  by  the  by-laws  of 
such  corporation.  All  by-laws  must  be  legal,  reasonable, 
general  in  their  application  and  must  not  impair  vested 
proi)erty  rights. 


138  PUTNEY 'a    BAK    EXAMINAllUN    KKVIEW 

Ultra  Vires  Acts  of  a  Corporation. 

An  ultra  vires  act  of  a  corporation  is  one  beyond  the 
powers  of  the  corporation,  i.  v.,  an  act  which  it  is  not 
authorized  to  do  either  by  the   statutes  or  by  its  charter. 

An  ultra  vires  act  done  by  a  corporation  may  be  a  ground 
for  the  revocation  of  the  charter  of  such  corporation  l)y 
the  state.  A  threatened  ultra  vires  act  may  be  restrained 
upon  suit  brought  by  one  of  its  stockholders. 

The  decisions  of  the  various  states  are  in  hopeless  conflict 
on  the  question  as  to  whether  an  ultra  vires  contract  of  a 
corporation  is  enforceable  in  court,  and  if  so,  under  what  cir- 
cumstances. 

The  courts  of  a  majority  of  the  states,  at  the  prcscnl  tiim-, 
seem  inclined  to  take  a  rather  lilx-ral  view  on  this  (lucstiou 
and  to  hold  that  the  mere  fact  tliat  a  contract,  which  is  not 
otherwise  illegal,  is  ultra  vires,  will  not  of  itself  prevent, 
either  party  from  suing  on  the  contract ;  and  that  the  defence 
of  ultra  vires  shall  not  be  allowed  to  be  set  up,  when  such  an 
action  would  work  an  injustice,  under  all  the  circumstances 
of  the  case. 

Some  of  the  courts  take  a  stricter  view  of  the  matter  and 
hold  that  the  mere  fact  that  a  contract  is  ultra  vires  is  suffi- 
cient to  prevent  any  action  being  brought  thereon.  Even 
these  courts  hold,  however,  that  if  the  contract  has  been 
fully  executed  on  both  sides,  the  courts  will  not  interfere  at 
the  instance  of  either  party  to  undo  what  has  been  done, 
that  a  negotiable  instrument  executed  or  indorsed  by  a  cor- 
poration is  good  as  against  it  in  the  hands  of  a  holder  for 
value  and  without  notice,  except  in  cases  where  the  cor- 
poration clearly  had  no  power  at  all  to  execute  or  indorse 
such  instruments,  and  that  a  transaction,  oi-  contract,  if 
severable,  may  be  valid  in  part,  though  in  part  it  is  ultra 
vires. 

Liability  of  Corporations  for  Torts  and  Crimes. 

A  private  corporation  is  liable  for  the  acts  of  its  agents 
to  the  same  extent  as  an  individual.  Such  a  corporation, 
therefore,  is  liable  for  all  the  torts  committed  by  an  agent 


PKIVATL    COKPOKATIOXS  139 

ill  the  regular  course  of  his  agency.  Corporations  may  even 
l)e  held  liable  for  torts  involving  a  mental  element,  such 
as  malice,  deceit,  etc. 

A  corporation  may  always  be  held  criminally  liable  for 
acts  of  omission,  and  a  large  majority  of  the  states  now 
hold  that  a  corporation  may  be  liable,  criminally,  for  cer- 
tain acts  of  commission,  as,  for  example,  maintaining  a 
nuisance. 

A  corporation  niay  be  liable  for  contempt  of  court. 

Management  of  a  Corporation. 
A  corporation  for  profit  is  under  the  control  of  its  stock- 
holders. ^Matters  of  the  highest  importance  are  voted  upon 
directly  by  the  stockholders,  while  the  settlement  of  mat- 
ters of  less  importance  are  delegated  to  the  control  of  the 
Board  of  Directors.  The  Board  of  Directors  are  always 
elected  by  the  stockholders;  other  officers  of  a  corporation 
are  sometimes  elected  by  the  stockholders  and  sometimes 
by  the  Board  of  Directors. 

Directors. 
The  general  management  of  every  stook  corporation  is 
vested  in  a  board,  generally  known  as  the  Board  of  Directors. 
Directors  have  power  only  collectively.  An  individual  direc- 
tor cannot  bind  a  corporation.  Directors  are  chosen  by  vote 
of  the  stockholders;  .sometimes  by  a  vote  of  all  the  stock- 
holders and  sometimes  by  the  vote  of  the  common  stockhold- 
ers alone.  The  exact  powers  of  the  directors  vary  in 
different  corporations.  Such  powers  will  be  determined  by 
the  statutes  of  the  State,  the  charter  of  the  corporation  and 
the  bj^-laws  of  the  corporation.  In  general,  all  routine  mat- 
ters and  matters  effecting  the  ordinary  carrying-on  of  the 
business  of  a  corporation  are  determined  by  the  directors, 
while  matters  of  more  fundamental  importance  must  be  re- 
ferred to  the  vote  of  the  stockholders.  Among  the  more  im- 
portant matters  which  must  be  voted  upon  by  the  stockhold- 
ers are  acceptance  of  amendments  to  the  charter,  changing  of 
by-laws,  increasing  or  decreasing  the  capital  slock,  changing 


140  putney's  hah  examination  review 

till'  cluiractci"  of  the  business,  issuing-  bonds,  etc.  The  ques- 
tion of  (l(K'hii"ing'  dividends  is  <h'levniined  by  n  vote  of  thi; 
boMi-d  of  (lii'eeloi's. 

Finanei;d  linbility  is  ;dso  imposed  upon  direetors  in  some 
other  respeets,  l)y  statutes  in  various  States.  P'or  example,  in 
Illinois  it  is  provided  that  when  tlu'  total  indebtedness  of  a 
corporation  shall  exceed  the  capital  stock,  the  officers  and  di- 
rectors asserting  thereto  shall  be  liable  for  the  excess  of  the 
liabilities  over  the  capital  stock.  In  some  other  States,  officers 
and  directors  may  be  iiablf  for  certain  classes  of  debts,  as, 
for  instance,  wago  claims. 

Directors  hold  a  fiduciarv  relation  towards  the  stockhold- 
ers and  will  be  liable  for  any  misconduct  on  their  part.  An 
innocent  director,  howevci-.  will  not  be  liable  for  the  fraud  of 
others. 

Stocks  and  Bonds. 
The  securities   of  a    corporation   are   divided   into   stocks 
and  bonds.     The   stockholders   are   collectively   the   owners 
of  the  property  of  the  corporation,  while  the  bondholders 
are  creditors  of  the  corporation. 

Subscriptions  for  Stock. 

Subscriptions  for  stock  may  be  made  either  before  or  after 
the  incorporation  of  the  corporation.  If  made  after  incor- 
poration the  contract  is  binding,  even  when  executory.  There 
has  been  much  difference  of  opinion  as  to  the  effect  of  a  con- 
tract of  subscription  to  stock  made  before  the  charter  of  the 
corporation  was  issued.  The  better  rule  seems  to  be  that  if 
the  subscription  was  in  pursuance  of  a  step  expressly  author- 
ized by  law  to  be  taken  in  the  creation  of  a  corporation,  such 
a  contract  is  binding  but  otherwise  not.  Contracts  to  sub- 
scribe for  stock  are  generally,  but  not  always,  held  to  come 
under  the  provisions  of  the  Statute  of  Frauds.  In  some 
States  it  is  necessary  that  all  stock  of  the  corporation  be  sub- 
scribed for  before  the  corporation  begins  doing  business,  but 
in  other  States  this  requirement  does  not  exist. 

In  some  States  all  stock  subscribed  for  must  be  paid  for  in 
full  in  advance.    In  most  States  a  portion  may  be  paid  and  the 


PRIVATE    COKPUKATIONS  141 

payment  of  the  balance  deferred.     Stock  may  be    paid    for 
either  in  money  or  in  property  or  labor. 

In  some  States  the  value  of  such  property  must  be  passed 
upon  by  some  State  official  and  in  many  cases  where  there  is 
fraud  in  the  valuation  of  propertj^  the  party  paying  for  stock 
with  such  property  maj  be  held  liable  to  the  creditors  of  the 
corporation. 

Preferred  Stock. 

The  name  preferred  stuck  is  given  to  that  stock  which  is 
"preferred"  in  payment  of  dividends.  In  other  words,  stock 
which  receives  dividends  in  advance  of  common  stock. 

Preferred  stock  may  be  classified  in  several  ways.  The  first 
classification  would  be  into  voting  and  non-voting  preferred 
stock.  Some  preferred  stock  carries  with  it  the  right  to  vot  ■ 
at  stockholders'  meeting,  and  other  preferred  stock  is  with- 
out any  share  in  the  management  of  the  company. 

Another  division  of  preferred  stock  is  that  into  cumulative 
and  non-cumulative  stock.  In  non-cumulative  preferred 
stock  each  year's  business  if.  considered  by  itself  and  if  the 
company  fails  to  earn  enough  to  pay  the  dividend  to  which 
the  preferred  stock  is  entith d  one  year,  such  deficiency  can- 
not be  made  up  out  of  the  earnings  of  the  following  year.  In 
the  case  of  cumulative  preferred  stock,  any  back  deficiency 
due  on  preferred  stock  must  be  paid  before  the  common  stock 
may  receive  anything. 

The  third  classification  of  preferred  stock  is  into  preferred 
stock  which  can  never  receive  a  larger  dividend  than  that 
Avhich  is  paid  before  the  common  stock  receives  anything,  and 
])referred  stock  which  will  receive  an  equal  dividend  with  the 
comon  stock  if  enough  is  earned  to  pay  both  a  dividend  higher 
than  that  to  the  extent  of  which  the  preferred  stock  is  pre- 
feri-ed. 

A  fourth  classification  of  preferred  stock  is  that  into  pre- 
ferred stock  which  may  br  retired  by  a  vote  of  the  common 
stock  and  preferr«^d  slock  which  cannot  be  so  retired. 
Transfer  of  Stock. 

It  is  generally  provided  tli.it  stock  in  a  eorjioration  can  be 
transferred  only  by  transfer  of  tl.c  shares  on  the  l)ooks  of  the 


142  putney's  bar  examination  review 

company.  This  is  a  matter  which  is  partly  regulated  by  stat- 
ute and  partly  by  the  by-laws  of  the  corporation. 

The  Uniform  Transfer  of  Stock  Act,  Mliich  has  been  i-ecom- 
mended  for  adoption  to  the  legislature  of  tlie  various  stiites. 
contains  the  followinii-  pi'ovisions  of  this  subject  : 

Section  1.  How  Title  to  Certificates  and  Shares  May  Be 
Transferred. 

Title  to  a  certificate  and  to  the  shares  represented  thei-eby 
can  be  trensferred  only. 

(a)  J^y  deliv-ery  of  the  certifieate  indorsed  I'ithcr  in 
blank  or  to  a  specified  person  by  the  person  appeai'iiiu  by  tlie 
certificate  to  be  the  owner  of  the  shares  represented  thereby, 
or 

(b)  By  delivery  of  the  certificate  and  a  separate  docu- 
ment containing  a  written  assignment  of  the  certificate  or  a 
power  of  attorney  to  sell,  assign,  or  transfer  the  same  or  the 
shares  represented  thereby,  signed  by  the  person  appearing 
by  the  certificate  to  be  the  owner  of  the  shares  represented 
thereby.  Such  assignment  or  power  of  attorney  may  be 
either  in  blank  or  to  a  specified  person. 

The  provisions  of  this  st^ction  shall  l)e  apjilicable  although 
the  charter  or  articles  of  incorporation  or  code  of  regulations 
or  by-laws  of  the  corporation  issuing  the  certificate  and  cer- 
tificate itself,  provide  that  the  shares  represented  thereby 
shall  be  transferable  only  on  the  books  of  the  corporation  or 
shall  be  registered  by  a  register  or  transferred  by  a  transfei- 
agent. 

Section  2.  Powers  of  Those  Lacking  Full  Legal  Capacity 
and  of  Fiduciaries  Not  Enlarged. 

Nothing  in  this  Act  shall  be  construed  as  enlarging  the 
powers  of  an  infant  or  other  person  lacking  full  legal  ca- 
pacity, or  of  a  trustee,  executor  or  administrator,  or  other 
fiduciary,  to  make  a  valid  indorsement,  assignment  or  power 
of  attornev. 


PRIVATE  CO upo Rations  143 

Section  3.  Corporation  Not  Forbidden  to  Treat  Registered 
Holder  as  Owner. 

Nothing  in  this  Act  shall  be  constnied  as  forbidding:  a 
corporation. 

(a)  To  recognize  the  fxclusive  right  of  a  person  regis- 
tered on  its  boojis  as  the  owner  of  shares  to  receive  dividends, 
and  to  vote  as  such  owner,  or 

(b)  To  hold  liable  for  calls  and  assessments  a  person 
registered  on  its  books  as  the  owner  of  shares. 

Section  4.  Title  Derived  from  Certificate  Extinguishes 
Title  Derived  from  a  Separate  Document. 

The  title  of  a  transferee  of  a  certificate  under  a  power 
of  attorney  or  assignment  not  writt<'n  upon  the  certifi- 
cate, and  the  title  of  any  person  claiming  under  such 
transferee,  shall  cease  and  determine  if,  at  any  time  prior  to 
the  surrender  of  the  certificate  to  the  corporation  issuing  it, 
another  person,  for  value  in  good  faith,  and  without  notice 
of  the  prior  transfer,  shall  purchase  and  obtain  delivery  of 
such  certificate  to  be  the  owner  thereof,  or  shall  purchase  and 
obtain  delivery  of  such  certificate  and  the  written  assignment 
or  powder  of  attorney  of  such  person,  though  contained  in  a 
separate  document. 

Section  5.    Who  May  Deliver  a  Certificate. 

The  delivery  of  a  eertiticatc  to  transfer  title  in  accordance 
witli  the  provisions  of  Section  1,  is  effectual,  except  as  pro- 
vided in  Section  7,  though  made  by  one  having  no  right  of 
possession  and  having  no  authority  from  the  owner  of  the 
certificate  or  from  the  person  purporting  to  transfer  the  title. 

Section  6.  Indorsement  Effectual  in  Spite  of  Fraud,  Du- 
ress, Mistake,  Revocation,  Death,  Incapacity  or  Lack  of  Con- 
sideration or  Authority. 

The  indorsement  of  a  certificate  by  the  person  appearing 
by  the  certificate  to  be  the  owner  of  the  shares  represented 
thereby  is  effectual,  except  as  provided  in  Section  7,  though 
the  indorser  or  transferor, 

(a)  was  induced  by  fraud,  duress  or  mistake,  to  make 
the  indorsement  or  deliverv.  or 


144  putney's  bar  examination  review 

(b)  has  revoked  the  delivery  of  the  certificate,  or  the 
authority  S'iveti  by  the  indorsement  or  delivery  of  the  cer- 
tificate, or 

(c)  has  died  or  become  legally  incapacitated  after  the 
indorsement,  whether  before   or  after  the  delivery  of  the 

certificate,  or 

(d)  has  received  no  consideration. 

Rights  of  Stockholders. 
The   rights   of   stockholders    in   private   corporations   fall 
under  the  four  divisions: 

(1)  Rights  of  stockholders  to  a  share  in  the  manage- 
ment of  the  corporation. 

(2)  Right«  of  stockholders  to  examine  the  books  and 
records  of  the  company. 

(3)  Rights  of  stockholders  in  the  property  and  earnings 
of  the  corporation. 

(4)  Rights  of  stockholders  to  bring  suit  on  behalf  of  the 
corporation,  or  to  bring  suit  against  the  officers  of  the 
corporation. 

The  rights  of  a  stockholder  to  a  share  in  the  management 
of  the  corporation  are  three  in  numl)er,  viz. : 

(1)  The  right  to  vote  in  the  election  of  directors  and 
of  such  other  officers  as  by  the  charter  and  by-laws  of  the 
corporation  are  to  be  elected  by  the  stockholders. 

(2)  The  right  to  vote  at  all  regular  and  special  meet- 
ings of  the  stockholders  upon  all  subjects,  which,  by  the 
charter  and  by-laws  of  the  corporations,  are  reserved  for 
the  determination  of  the  stockholders. 

(3)  The  right  to  vote  upon  the  question  of  any  pro- 
posed change  in  the  charter  of  the  corporation. 

In  voting  for  officers,  each  stockholder  has  one  vote 
for  each  share  of  stock  w^hich  he  owns.  In  some  states  the 
cumulative  method  of  voting  has  been  adopted  in  the  elec- 
tion of  directors.  By  this  method  each  stockholder  has  as 
many  votes  as  he  has  shares  multiplied  by  the  number  of 
directors  to  be  chosen.  Thus,  if  a  stockholder  has  one 
hundred  shares  of  stock  and  five  directors  are  to  be  elected, 
he  has  five  hundred  votes. 


PRIVATE    CORPORATIONS  145 

Elections  must  be  held  at  a  reasonable  time  and  place, 
and  when  a  certain  time  has  been  announced  for  the  elec- 
tion it  cannot  be  held  at  an  earlier  hour,  so  as  to  deceive 
part  of  the  stockholders. 

' '  Stockholders  have  the  right,  at  common  law,  to  examine 
and  inspect  all  the  books  and  records  of  the  corporation  at 
all  seasonable  times,  and  to  be  thereby  informed  of  the  con- 
dition of  the  corporation  and  its  property."  (Lewis  vs. 
Brainerd,  53  Vt.,  519.) 

A  creditor  of  the  corporation  or  any  person  who  is  a 
stranger  to  it  can  obtain  access  to  its  records  by  a  bill  in 
equity  for  discovery.  Corporate  books  in  the  hands  of  a 
receiver  should  be  open  to  all  parties. 

In  case  of  a  refusal  to  a  stockholder  of  the  right  to  ex- 
amine the  books  and  records  of  the  corporation,  he  may 
seek  redress  in  any  one  of  the  four  following  different 
ways: 

(1)  An  action  at  law  for  damages  against  the  cor- 
poration. 

(2)  Such  an  action  against  the  officer  of  the  corpora- 
tion who  thus  refuses  to  allow  such  examination. 

In  either  of  these  cases  the  stockholder  is  entitled  to 
nominal  damages  without  proof  of  loss,  and  in  addition  to 
substantial  damages  for  losses,  resulting  from  such  refusal, 
which  he  can  prove. 

(3)  A  writ  of  mandamus  against  the  corporation. 

(4)  A  writ  of  mandamus  against  the  officer  of  the  cor- 
poration in  whose  possession  the  books  and  records  of  the 
corporation  are  to  be  found. 

A  writ  of  mandamus  is  generally  the  only  adequate 
remedy. 

A  stockholder  forfeits  his  right  to  examine  the  books 
and  records  of  the  corporation  when  he  seeks  to  use  it  for 
an  improper  purpose,  as  to  aid  a  rival  corporation. 

The  stockholders  of  a  corporation  are  in  a  sense  the 
owners  of  the  property  held  by  the  corporation.  The  in- 
terest, however,  of  a  stockholder  in  the  property  of  the 
corporation  is  an  intangible  one.     In  the  case  of  a  going 


146  putney's  bar  examination  review 

corporation,  no  stockhoklor  has  any  claim  to  any  particu- 
lar piece  of  property  owned  by  the  corporation.  What  a 
stockholder  really  owns  is  his  proportionate  share  oi'  the 
excess  of  the  assets  of  the  corporation  over  its  liabilities. 
In  a  going  concern  it  cannot  be  ascertained  what  such 
excess  is.  Until  the  dissolution  of  a  corporation  a  stock- 
holder is  entitled  to  receive  nothing  except  dividends. 

Dividends  must  be  distinguished  from  profits.  The  profits 
of  a  corporation  include  all  money  earned  by  a  corpora- 
tion; dividends  are  a  fund  which  a  corporation  has  set 
aside  from  its  profits  to  be  divided  among  its  stockholders. 
A  stockholder  has  no  legal  right  to  any  portion  of  the 
profits  of  a  corporation  until  a  dividend  has  been  declared. 

The  declaration  of  a  dividend  is  generally  within  the 
discretion  of  the  directors.  Only  when  such  discretion  has 
been  greatly  abused,  as  where  the  directors  act  in  bad  faith, 
will  a  court  of  equity  interfere  and  order  the  declaration 
of  a  dividend. 

When  a  dividend  has  been  once  properly  declared,  the 
money  set  aside  for  this  purpose  is  in  the  nature  of  a  trust 
fund  held  bj^  the  corporation  for  its  stockholders,  and  the 
stockholders  are  entitled  to  this  money  even  as  against  the 
creditors  of  the  corporation. 

After  a  dividend  is  due  and  payable  it  becomes  a  debt 
of  the  corporation,  and  a  stockholder  may  sue  for  it. 

Ordinarily,  the  control  of  litigation  for  a  corporation  is 
in  the  control  of  its  officers  and  directors.  The  law,  how- 
ever, does  not  leave  the  stockholders  of  a  corporation  with- 
out relief,  where  the  officers  of  a  corporation,  through  neg- 
ligence or  fraud,  fail  to  bring  a  necessary  suit.  Tn  such  a 
case  one  or  more  stockholders  may  bring  suit  in  behalf  of 
the  corporation. 

Rights  of  Creditors  Against  Stockholders. 
The  stockholders  of  the  corporation  are  not  liable  to  the 
creditors  of  the  company  for  the  ordinary  indebtedness  of  the 
corporation.  They  are  liable,  however,  to  the  creditors 
(when  the  action  is  brought  in  a  proper  manner)  for  the  un- 
paid portion  of  their  stock. 


PKIVATE    CUKPURATION.-3  147 

A  corporation  when  ory:aniziug  cannot  sell  its  share  below 
par  and  make  an  agreement  with  its  stockholders  that  they 
will  not  be  held  liable  for  the  shares  so  as  to  render  this  agree- 
ment binding  upon  the  creditors  of  the  company.  If,  how- 
ever, a  going  corporation  is  compelled,  or  finds  it  advanta- 
geous, to  issue  additional  shares  of  stock  to  continue  or  en- 
large the  business,  such  new  shares  may  be  sold  at  the  mar- 
ket value  at  the  time  of  the  sale  of  the  old  shares  of  the  com- 
pany, and  the  purchaser  will  not  incur  any  further  liability. 

To  constitute  one  a  stockholder  some  sort  of  subscription  or 
contract  is  necessary  whereUy  the  !-;ubscribor  obtains  a  right 
to  the  stock,  and  to  act  as  a  stockholder. 

Stockholders  who  have  received  their  stock  in  return  for 
labor  or  services  stand  on  the  same  basis  as  the  stockholders 
who  have  paid  cash  for  the  stock  except  that  in  cases  where 
the  property  or  labor  were  fraudulently  overvalued,  the  true 
value  of  the  same  nuist  be  shown  in  suits  by  creditors. 

The  general  rule  is  that  the  liability  of  the  stock  passes 
from  the  transferrer  to  the  transferee,  but  if  the  corporation 
is  insolvent  at  the  time  of  the  transfer,  transfers  to  irresponsi- 
ble parties  or  to  infants  or  married  women  does  not  relieve 
the  transferrer.  Furthermore,  the  transfer  must  be  regis- 
tered before  the  transferrer  can  be  released  from  liability. 

In  addition  to  their  liability  on  the  unpaid  portion  of  their 
stock,  stockholders  will  also  be  liable  for  the  money  received 
by  them  as  the  proceeds  of  dividends  improperly  paid  out  of 
the  capital  of  the  company. 

Remedies  against  the  corporation  itself  must  be  exhausted 
bv  the  creditors  before  they  proceed  against  a  stockholder. 

Status  of  Foreign  Corporations. 

A  corporation  established  in  one  State  does  not  fall  \vithin 
the  protection  given  in  the  first  clause  of  the  second  section 
of  the  Fourth  Article  of  the  United  States  Constitution  which 
provides  that : 

"The  citizens  of  each  State  shall  be  entitled  to  all  privi- 
leges and  immunities  of  the  several  States." 

A  corporation  created  under  the  laws  of  one  State  has. 


148  putney's  bar  examination  review 

therefore,  no  inherent  right  to  enter  to  do  business  in  another 
State. 

It  is,  however,  a  principle  of  law  of  nations  that,  in  the 
absence  of  any  positive  rule  affirming,  denying,  or  restrain- 
ing the  operation  of  foreign  laws,  courts  will,  through  comity, 
presume  the  tacit  adoption  of  them  by  their  own  government 
unless  repugnant  to  its  policy  and  interests.  By  an  aplication 
of  this  rule,  the  legal  existence  and  corporate  capacity  of  for- 
eign companies  are  now  universally  recognized. 

Recent  Legislation  Against  Foreign   Corporation. 

For  some  years  past  it  has  been  customary  for  corporations 
to  take  out  a  charter  in  a  State  other  than  that  in  which  their 
principal  place  of  business  is  located  on  account  of  the 
greater  leniency  of  the  corporation  laws  of  the  State  granting 
the  charter. 

This  has  led  to  such  great  abuses  in  the  past  that  very  re- 
cently a  number  of  States  have  passed  laws  requiring  all  for- 
eign corporations  doing  business  -with  the  State  to  obtain  a 
license  before  commencing  business  in  such  State,  and  also 
putting  such  other  restrictions  and  burdens  upon  foreign  cor- 
porations as  to  deprive  them  of  nearly  all  the  benefits  which 
they  sought  by  incorporating  in  some  other  State. 

(Note. — A  part  of  the  text  of  this  chapter  on  Private  Cor- 
porations is  composed  of  extracts  from  the  author's  work  on 
"Corporations.") 


CHAPTER  XVI. 
PUBLIC  CORPORATIONS. 

A  public  corporation  is  a  political  subdivision  of  some 
character;  it  is  created  to  exercise  certain  governmental 
functions,  and  to  a  greater  or  less  extent  it  acts  as  the 
agent  of  the  government  (national,  state  or  territorial) 
which  created  it. 

Public  corporations  are  divided  into  municipal  corpora- 
tions and  public  quasi  corporations. 

A  public  quasi  corporation  is  the  simpler  species  of  cor- 
poration. Such  a  corporation  is  merelv  a  local  subdivision 
of  the  state  which  created  it,  created  for  the  benefit  of  the 
state  at  large  instead  of  for  the  benefit  of  the  inhabit- 
ants of  the  territory  included  within  the  limits  of 
the  public  quasi  corporation  itself.  The  powers  exercised 
by  any  public  quasi  corporation  are  entirely  of  the  class 
which  belong  primarily  to  the  government  which  created 
the  corporation,  and  which  it  is  the  duty  of  the  govern- 
ment to  exercise,  either  directly  or  through  some  appro- 
priate agency,  throughout  the  whole  territory  subject  to 
its  jurisdiction.  Examples  of  public  quasi  corporations  are 
counties,  townships,  towns  (in  the  New  England  States), 
school  districts,  sanitary  districts,  etc. 

]\Iunieipal  corporations,  in  addition  to  the  general  gov- 
ernmental powers  possessed  by  public  quasi  corporations, 
have  the  authority  to  exercise  other  powers  for  the  especial 
benefit  of  the  citizens  of  the  municipal  corporations.  Mu- 
nicipal corporations  include  cities  and  incorporated  towns 
and  villages. 

Systems  of  Local  Government. 
The  general  system  of  local  government  differs  greatly 
in  the  different  states,  the  difference  mainly  consisting  in 
the  varying  powers  of  the  counties,  and  of  the  townships 

149 


150  putney's    UAH    KXAMINATIO.V    KKVIKW 

(or  towns).  There  are  four  general  systems  ol  luiiil  j^on- 
ernment  in  t'le  United  States:  The  New  England  isysteiii, 
the  Houtlicni  (or  Vii-ginia)  system,  the  New  York  com- 
promise system,  and  the  Pennsylvania  compromise  system. 

Under  the  New  P]ngland  system,  the  most  important  mat- 
ters of  local  government  are  given  to  the  towns,  the  coun- 
ties being  little  more  than  judicial  divisions.  An  annual 
town  meeting  is  held  in  each  town  at  Avhich  all  matters 
of  importance  are  discussed  and  voted  upon  directly  by 
the  voters  of  the  town.  The  i)rincipal  officers  of  the  town 
government  are,  a  moderator,  A\ho  is  the  i)residing  officer 
of  the  toAvn  meeting,  and  a  Hoard  of  Selectmen  (generally 
three  in  numl^er)  who  have  general  charge  of  carrying  on 
the  public  business  of  the  town,  subject  to  the  action  taken 
by  the  town  meeting. 

Under  the  Southern  system,  there  are  no  toAvns  or  town- 
ships at  all,  and  all  local  government  is  vested  in  the  coun- 
ties. In  some  of  the  southern  states  this  system  has  been 
somewhat  modified,  and  the  system  of  local  government  is 
now  of  the  general  character  of  the  Pennsylvania  Compro- 
mise system. 

Under  the  New  York  compromise  system,  or  supervisor 
system,  the  powers  of  local  government  are  more  equally 
divided  between  the  townships  and  counties.  Each  town- 
ship elects  a  supervisor,  who  is  the  chief  executive  officer 
of  the  township,  and  the  supervisors  of  all  the  townships  in 
a  county  constitute  the  governing  board  of  such  county. 
The  supervisor  thus  constitutes  a  connecting  link  between 
the  governments  of  the  tov\'ns  and  of  the  county. 

Under  the  Pennsylvania  system  township  government  ex- 
ists, but  most  of  the  powers  of  government  are  given  to  the 
counties.  Each  county  is  governed  by  a  Board  of  County 
Commissioners. 

Illinois  has  a  mixed  system  of  county  government.  Un- 
der the  provisions  of  the  Constitution  of  1818,  the  Southern 
system  of  local  government  "vvas  the  only  system  recog- 
nized; dissatisfaction  with  this  provision  in  the  northern 
part  of  the  state  was  mainly  responsible  for  the  adoption 


PUBLIC    CORPORATIONS  151 

of  the  Constitution  of  1848,  one  provision  in  which  per- 
mitted a  majority  of  the  voters  in  any  county  to  adopt  a 
township  organization  with  a  supervisor  system  of  govern- 
ment. This  dual  system  of  local  government  was  retained 
in  the  Constitution  of  1870.  A  special  system  of  local  gov- 
ernment is  provided  for  Cook  County.  Township  organiza- 
tion exists  in  Cook  County  (a  few  years  ago  this  was  abol- 
ished in  that  part  of  the  county  included  within  the  limits 
of  the  City  of  Chicago),  but  the  county  is  governed  by  a 
Board  of  County  Commissioners  instead  of  by  the  super- 
visors of  the  various  towns. 

Powers  of  Public  Quasi  Corporations, 
All  classes  of  public  corporations  must  derive  their  pow- 
ers from  some  legislative  body.  "In  this  country  all  cor- 
porations, whether  public  or  private,  derive  their  powers 
from  legislative  grant,  and  can  do  no  act  for  which  au- 
thority is  not  expressly  given  or  may  not  be  reasonably 
inferred.  But  if  we  were  to  say  that  they  can  do  nothing 
for  which  a  warrant  could  not  be  found  in  the  language  of 
the  charter,  we  would  deny  them  in  some  cases  the  power 
of  self  preservation  as  well  as  many  of  the  means  necessary 
to  the  essential  object  of  their  incorporation.  ^Vnd,  there- 
fore, it  has  long  been  an  established  principle  of  the  law 
of  corporations  that  they  may  exercise  all  the  powers  within 
the  fair  intent  and  purpose  of  their  creation  which  are  rea- 
sonbly  proper  to  give  effect  to  powers  expressly  granted. 
In  doing  this  they  must  have  a  choice  of  means  adapted  to 
ends  and  are  not  to  be  confined  to  any  one  mode  of  opera- 
tion."    (Bridgeport  v.  Railroad  Co.,  15  Conn.,  475). 

The  most  important  powers  of  such  public  quasi  corpora- 
tions as  towns  or  counties,  are  those  relative  to  the  adminis- 
tration of  justice,  those  relative  to  streets  and  highways, 
and  those  falling  within  that  broad,  vaguely  defined  class  of 
powers,  grouped  together  under  the  general  title  of  the 
police  power. 

There  arc  other  public  quasi  corporations  which  are  cre- 
ated for  the  exercise  of  powers  of  one  special  class  of  pow- 


152  putney's  bar  examination  review 

ers:  such  as  school  districts,  park  districts,  and  sanitary 
districts. 

All  classes  of  public  quasi  corporations  have  the  gen- 
eral implied  powers  possessed  by  all  corporations,  such  as 
the  power  to  contract  and  the  power  to  borrow  money. 

Among  the  police  powers  possessed  by  many  quasi  cor- 
porations are :  the  preservation  of  health ;  the  regulation 
of  wharves  and  markets;  the  prevention  of  fires;  the  grant- 
ing of  licenses  of  various  kinds;  and  the  care  of  the  indi- 
gent and  the  infirm. 

Powers  of  Municipal  Corporations. 

In  addition  to  the  powers  possessed  by  public  quasi  cor- 
porations, a  municipal  corporation  has  certain  powers  of  a 
private  character,  which  are  exercised  for  the  special  bene- 
fit of  its  own  citizens.  Supplying  its  citizens  with  gas  or 
water  are  illustrations  of  the  exercise  of  powers  of  a  pri- 
vate nature  by  a  municipal  corporation.  The  control  which 
a  state  legislature  has  the  right  to  exercise  over  a  munici- 
pal corporation  is  much  less  complete  when  it  affects  the 
private  powers  of  such  corporation  than  when  it  affects 
its  public  powers. 

''These  municipal  corporations  are  of  two-fold  charac- 
ter; the  one  public  as  regards  the  state  at  large,  in  so  far 
as  they  are  its  agents  in  government,  the  other  private  in 
so  far  as  they  are  to  provide  the  local  necessities  and  con- 
veniences for  their  own  citizens.  As  to  the  acquisitions 
they  may  make  in  their  latter  capacity  as  mere  corpora- 
tions, it  is  neither  just  not  is  it  competent  for  the  legisla- 
ture to  take  way  or  to  deprive  the  local  community  of  the 
benefit  thereof.  Conceding  to  the  state  the  authority  to 
shape  the  municipal  organizations  at  its  will,  it  would  fol- 
low that  a  similar  power  of  control  might  be  exercised  by 
the  state  as  regards  the  property  which  the  corporation 
has  acquired,  or  the  rights  in  the  nature  of  property  which 
have  been  conferred  upon  it.  There  are  cases  which  assert 
such  power,  but  they  are  opposed  to  what  seem  to  be  the 
best   authorities,   as  well    as    the    soundest   reason.     The 


PUBLIC    CORPORATIONS  153 

municipality,  as  an  agent  of  tlie  government,  is  one  thing; 
the  corporation,  as  an  owner  of  propertj',  is  in  some  par- 
ticulars to  be  regarded  in  a  very  different  light."  (Judge 
Cooley  in  People  vs.  Ilurlburt,  24  ^lich.,  44). 

Liability  of  Public  Corporations  Ex  Contractu. 

A  public  corporation  of  any  kind  is  liable  upon  all  eon- 
tracts,  which  are  within  the  scope  of  the  powers  granted 
to  it  by  its  charter  or  by  statute,  and  which  are  made  by 
the  proper  officers,  in  the  manner  prescribed  by  law. 

The  doctrine  of  ultra  vires  contracts  is  enforced  much 
morQ  strictly  in  the  case  of  a  public  corporation  than  in  the 
case  of  private  corporations. 

The  harshness  of  this  rule,  however,  has  led  to  the  adoption 
of  certain  modifications  which  seem  necessary  in  order  to  do 
justice  between  the  parties,  the  principal  modifications  being 
secured  by  the  application  of  the  doctrines  of  estoppel  and 
implied  contract. 

When  a  public  corporation  enters  into  a  contract  which  is 
within  the  general  scope  of  the  power  of  the  corporation, 
but  which  is  entered  into  in  an  irregular  manner,  the  corpora- 
tion cannot  set  up  the  defence  of  ultra  vires  against  a  party 
who  in  good  faith  has  transferred  property  to,  or  performed 
services  for,  the  corporation. 

"Where  a  contract  is  only  partially  ultra  vires,  if  the  con- 
tract is  separable,  the  part  of  the  contract  which  the  cor- 
poration could  have  properly  made,  is  valid. 

"Where  the  property  has  come  into  the  possession  of  a 
public  corporation  under  an  ultra  vires  contract,  the  law 
implies  a  contract  on  the  part  of  the  public  corporation  to 
restore  such  property  to  the  person  from  whom  it  was 
received. 

Taxes  illegally  collected  may  be  collected  back  again  by 
the  person  paying  the  same  under  protest  if:  (1)  the  tax 
was  actually  illegal  and  not  merely  irregular;  (2)  the  tax 
was  paid  under  compulsion  or  its  legal  equivalent;  and 
(3)  the  taxes  were  paid  over  by  the  collecting  officer  and 
received  by  the  public  corporation  for  its  own  use. 


154  PUTNEY  e's  bakxaminatiun  keview 

Liability  of  Public  Corporations  Ex  Delicto. 

A  marked  distinction  is  to  be  noted  between  the  liability 
of  a  public  corporation  (either  public  quasi  or  municipal) 
arisinj:  out  of  acts  of  a  governmental  nature,  and  the  lia- 
bility of  a  municipal  corporation  arising  out  of  its  acts  of 
a  private  character,  Tluis,  as  a  general  rule,  neither  a 
public  quasi  corporation  or  a  municipal  corporation,  can 
be  held  liable  for  negligence  in  the  exercise  of  a  govern- 
mental power,  while  a  municipal  corporation  may  be  held 
liable  for  negligence  in  the  exercise  of  one  of  its  strictly 
corporate  powers. 

If  the  exercise  of  a  certain  power  is  discretionary,  a 
municipal  corporation  cannot  be  held  liable  for  any  error 
of  judgment  as  to  whether  such  right  should,  or  should  not, 
be  eiiereised.  Thus  the  act  of  a  municipal  corporation  in 
opening  or  closing  a  street,  changing  a  grade  of  a  street, 
making  a  crossing  at  a  certain  place,  etc.,  cannot  constitute 
the  basis  of  a  suit  against  the  corporation. 

If  a  municipal  corporation,  however,  undertakes  to  do 
any  act,  and  does  it  in  a  negligent  manner,  they  are  liable 
to  the  same  extent  whether  the  act  Avas  one  whose  discharge 
was  discretionary  with  it,  or  one  which  was  imposed  upon 
it  by  law. 

While  the  doctrine  of  respondeat  superior  applies  to  the 
acts  of  the  agents  of  a  public  corporation,  while  acting  for 
such  corporation,  within  the  scope  of  their  authority,  the 
extent  of  the  liability  of  a  public  corporation  for  the  torts 
of  its  officers  and  agents  is  very  restricted.  The  principle 
of  the  non-liability  of  public  corporations  for  the  ultra 
vires  torts  of  its  officers  is  clearly  pstablished. 

A  public  corporation  is  not  responsil)le  for  the  torts  of  a 
public  officer  when  engaged  in  the  performance  of  his  duty, 
nor  for  the  acts  of  independent  boards  or  subordinate  boards 
which  exercise  governmental  power. 

The  officers  of  a  public  corporation  cannot  extend,  by 
contract,  the  liability  of  such  corporation  for  negligence, 
nor  can  an  ultra  vires  tort  be  ratified. 

When  a  public  corporation  owns  private  or  strictly  cor- 


ITBLIC    COHPOUATIONS  155 

porate  property,  it  is  liable  i'ur  negligence  in  the  main- 
tenance of  such  property,  to  the  same  extent  as  a  private 
corporation,  or  an  individual,  Avould  be.  No  such  liability 
attaches  when  the  property  is  devoted  to  public  purposes, 
unless  a  ])ortion  of  such  property  is  rented  out  for  private 
uses. 

When  a  municipal  corporation  engages  in  a  business 
enterprise,  such  as  the  furnishing  of  water  or  gas  to  its 
citizens,  it  is  held  to  the  same  degree  of  responsibility  as 
a  private  corporation  engaged  in  the  same  line  of  busi- 
ness. 

Public  quasi  corporations  cannot  be  held  liable  for  dam- 
ages arising  out  of  defective  streets  and  highways  under 
their  control,  unless  such  liability  is  placed  upon  them  by 
statute.  The  weight  of  the  authority  of  American  decisions, 
however,  is  to  the  effect  that  municipal  corporations  are 
required  to  use  reasonable  care  and  diligence  to  see  that 
its  streets  and  sidewalks  are  reasonably  safe,  and  are  liable 
for  their  failure  to  use  such  care.  A  municipality,  how- 
ever, can  never  be  held  responsible  for  injuries  resulting 
i'rom  defective  sidewalks  without  proof  that  the  municipal- 
ity had  cithci'  actual  or  constructive  notice. 

Municipal  Ordinances. 

A  certain  degree  of  legislative  ])()wer  is  given  to  munici- 
pal corporation.  This  power  is  vested  in  a  municipal  legis- 
hitive  body,  generally  called  either  a  Board  of  Aldermen, 
or  a  Common  Council.  This  legislative  power  is  exercised 
by  the  method  of  the  passage  of  ordinances. 

An  ordinance  should  have  the  same  general  form  as  a 
statute.  It  is  generally  provided  that  an  ordinance  must 
relate  to  one  subject  only,  which  must  be  recited  in  the 
title.  An  ordinance  must  contain  an  enacting  clause,  and 
a  clause  fixing  the  penalty  for  its  violation,  but  need  not 
recite  authority. 

The  steps  required  to  be  taken  in  the  passage  of  an 
ordinance  are  regulated  by  statute  or  charter  and  must  be 
complied  with.     It   is    generally   required   that    ordinances 


156  putney's  bar  examination  review 

shall  be  published  before  becoming  operative.  In  most 
states  a  provision  of  this  character  is  held  to  be  mandatory, 
but  in  Massachusetts,  and  perhaps  some  other  states,  such 
a  provision  is  held  to  be  merely  directory. 

Corporate  Taxation  and  Securities. 

A  public  corporation  has  such  powers  of  taxation  as  are 
given  to  it  by  the  legislative  body  which  created  it.  In 
most  states  a  limit  is  placed  upon  the  rate  of  taxation  which 
may  be  imposed  by  any  public  corporation. 

Local  assessments  differ  from  ordinary  taxes,  being  im- 
posed for  the  purpose  of  improvements  in  a  certain  locality, 
and  being  assessed  upon  those  living  in  that  locality,  in- 
stead of  upon  the  community  at  large. 

A  public  corporation  has  the  power  to  borrow  money  to 
carry  out  the  legitimate  powers  of  such  corporation.  The 
limit  of  indebtedness  which  a  public  corporation  may  con- 
tract is  generally  fixed  by  statute.  The  most  common  restric- 
tion is  that  the  indebtedness  must  not  exceed  a  certain  per- 
centage of  the  assessed  valuation  of  the  property  situated 
within  the  limits  of  the  corporation.  All  persons  must  take 
notice  of  the  legal  limitation  of  indebtedness  of  a  corporation 
and  a  person  lending  money  to  a  public  corporation  must  de- 
termine for  himself  and  at  his  own  peril  whether  such  limita- 
tion has  been  reached. 

A  warrant  is  an  order  drawn  by  one  officer  of  a  corpora- 
tion upon  another  officer,  in  favor  of  some  person  to  whom 
the  corporation  is  indebted. 


CHAPTER  XVII. 
WILLS. 

"A  will  is  an  instrument  by  which  a  person  makes  a 
disposition  of  his  property  to  take  effect  after  his  decease, 
and  which  is,  in  its  own  nature,  ambulatory  and  revocable 
during  his  life."     (Jarman  on  Wills.) 

The  right  of  disposing  of  personal  property  by  will  ex- 
isted in  England  from  the  earliest  times,  but  the  right  to 
dispose  of  real  property  by  will  was  given  by  the  Statute 
of  Wills,  in  1540.     (32  Henry  VIII.) 

Formerly  only  wills  conveying  real  property  were  re- 
quired to  be  in  writing;  but  at  the  present  time,  under  the 
statute  of  the  various  states,  all  wills  must  be  in  writing, 
although  in  a  few  states  different  formalities  are  required 
in  the  case  of  wills  affecting  real  property,  than  in  the  case 
of  other  wills. 

A  holographic  will  is  one  entirely  in  the  handwriting  of 
the  testator;  in  certain  states,  wills  of  this  character  are 
valid  although  lacking  the  formalities  required  in  the  case 
of  other  wills. 

Every  person  of  age,  and  who  is  not  under  some  special 
legal  liability,  may  make  a  will.  In  some  states  an  infant 
over  the  age  of  foui*teen  may  make  a  will  disposing  of  per- 
sonal property. 

Any  person  may  take  under  a  will,  except  those  to  whom 
the  statutes  deny  such  right.  Such  right  is  denied,  or  re- 
stricted, in  a  number  of  states,  in  the  case  of  corporations 
and  non-resident  aliens. 

A  will  may  be  irrevocable  if  made  for  a  valuable  con- 
sideration. 

Requisites  of  a  Will. 

The  requisites  for  a  valid  will  are: 

(1)  It     must  be  reduced  to  writing; 

(2)  It  must  be  signed  by  the  testator: 

157 


158  putney's  bar  examinatioiN  he  view 

(8j      It  must  be  acknowledged   by   the   testator; 

(4)  It  must  be  signed  by  witnesses  at  the  request  of 
the  testator. 

The  signature  may  be  by  mark,  or  some  other  person 
may  sign  for  the  testator,  in  his  presence  and  at  his  express 
request. 

In  some  states  the  witnesses  must  see  the  testator  sign 
the  will;  in  other  states  it  is  sufficient  if  the  testator  ac- 
knowledges such  signature  to  be  his.  In  some  states  the 
witnesses  must  sign  in  the  presence  of  each  other;  in  others 
this  is  not  necessary.  All  such  matters  are  regulated  by 
statutes.  In  the  absence  of  statutory  requirements  to  this 
effect,  neither  the  sealing  or  dating  of  a  will  is  required. 
The  publication  of  a  will  is  the  declaration  of  a  testator 
before  the  witnesses  to  a  will,  that  such  instrument  is  his 
last  will  and  testament. 

Revocation  of  Wills. 

A  will  may  be  revoked  either  by  the  act  of  the  testator, 
or  by  operation  of  law.  The  making  of  a  new  will,  will 
revoke  an  earlier  one,  either  entirely  or  pro  tanto.  The 
tearing,  burning,  cancelling,  obliterating  or  destroying  a 
will,  will  act  as  a  revocation  of  a  will  if  the  act  was  done 
with  that  intention.  The  accidental  destruction  of  a  will 
has  no  effect.  On  the  other  side,  the  mere  intention  to 
revoke  a  will  not  manifested  by  an  act,  is  not  sufficient  to 
accomplish  the  purpose. 

A  will  is  revoked  by  operation  of  law,  if  the  testator, 
after  making  the  will,  marries  and  has  issue. 

Republication  and  Codicils. 

A  codicil  is  a  supplement  to  a  will,  which  is  to  be  con- 
sidered as  part  of  the  original  will.  The  same  formalities 
are  required  in  the  making  of  a  codicil  as  in  the  making  of 
an  original  will. 

AYhere  a  will  has  been  revoked,  otherwise  than  by  the 
making  of  a  new  will,  it  could  be  revived  at  the  common 
law  by  an  oral  statement  of  a  testator,  or  by  an  informal 


WILLS  1,')0 

written  statement.  In  most  of  the  states  of  this  country, 
the  same  formalities  are  required  to  renew  a  will  as  to 
make  a  new  one. 

Probate  of  Wills. 

The  probate  of  a  will  is  its  proof  before  the  proper  court. 
The  ree,uirecl  formalities  are  entirely  regulated  by  statute. 

The  probate  of  a  will  may  be  opposed  on  the  ground  of 
mistake,  fraud,  or  undue  influence,  as  well  as  by  denying 
the  signature,  or  the  proper  execution  of  the  will. 


CHAPTER  XVIII. 

CONSTITUTIONAL  LAW. 

(Note. — This  chapter  on  Constitutional  Law  is  composed 
of  extracts  from  tlie  author's  work  on  "United  States  Con- 
stitutional History  and  Law."  The  text  of  the  United 
States  Constitution  will  be  found  as  Appendix  B.) 

The  United  States  Constitution. 

The  adoption  of  the  United  States  Constitution  marked 
the  opening  of  a  new  era  in  the  World's  legal  history.  Its 
derlying  principle  stands  as  the  second  great  contribution 
by  the  Anglo-Saxon  race  to  the  progress  of  political  science. 
The  English  statesmen  of  the  thirteenth  century  did  away 
with  the  seeming  incompatibility  between  free  government 
and  extended  areas  by  the  creation  of  representative  legis- 
lative assemblies.  It  remained  for  their  descendants  in  a 
new  continent  five  centuries  later  to  crown  this  work  by  pro- 
claiming the  principle  that  while  in  large  countries  or- 
dinary legislation  must  of  necessity  be  delegated  to  rep- 
resentatives of  the  people,  the  fundamental  principles  of 
government  must  be  the  work  of  the  people  themselves. 

Such  fundamental  principles  are  contained  in  a  con- 
stitution, and  where  the  true  principles  of  Constitutional 
law  are  appreciated,  such  principles  must  be  beyond  the 
reach  of  ordinary  legislative  enactments.  ''The  security  of 
a  people  against  the  misconduct  of  their  rulers  must  lie 
in  the  frequent  recurrence  to  first  principles,  and  the  im- 
position of  adequate  constitutional  restrictions."  "Con- 
stitutional mandates  are  imperative,"  and  "it  is  quite  clear 
that  legislation  cannot  abridge  a  constitutional  privilege." 
(Counselman  vs.  Hitchcock,  142  U.  S.,  585.) 

From  its  nature  the  proper  scope  of  a  Constitution  is 
confined  to  the  fundamentals.  A  Constitution,  from  its 
nature,    deals    in     generals,    not    in     detail.      Its    framers 

160 


CONSTITUTIONAL    LAW  161 

cannot  perceive  minute  distinctions  which  arise  in  the 
progress  of  the  nation,  and  therefore  confine  it  to 
the  establishment  of  broad  and  general  principles.  ''A 
Constitution  must  necessarily  be  an  instrument  which 
enumerates  rather  than  defines,  the  powers  granted  by  it." 
Within  the  limits  of  all  the  territory  which  owns  the 
authority  of  the  United  States  Government,  the  supreme 
law  is  the  Constitution  of  the  United  States.  The  Federal 
Government  is  created  by,  and  exists  only  in  virtue  of  this 
instrument.  The  state  governments,  while  older  than  this 
Constitution,  and  in  certain  respects  independent  of  it,  are 
still  obliged  to  recognize  it  as  the  supreme  law  of  the  land, 
and  to  allow  all  matters  concerning  their  relations  with  the 
central  government  to  be  regulated  by  its  provisions.  Over 
the  territory  belonging  to  the  United  States  the  authority 
of  the  Constitution  is  absolute.  As  the  first  successful  na- 
tional written  Constitution,  that  of  the  United  States  has 
served  as  a  model,  during  the  past  century,  to  the  constitu- 
tional conventions  of  many  countries.  Before,  however, 
treating  further  of  the  Constitution  of  the  United  States 
it  is  necessary  to  consider  briefly  the  nature  and  origin  of 
constitutions  in  general. 

Definition  of  a  Constitution. 
A  definition  of  a  Constitution  in  the  modern  sense  of  the 
word  is  a  matter  of  some  difficulty,  mainly  on  account  of 
the  difference  between  existing  Constitutions.  A  Consti- 
tution is  a  fundamental  body  of  laws  adopted  by  the  sov- 
ereign power  of  the  state,  to  serve  as  a  foundation  for  its 
government.  Authorities  and  Constitutions  are  not  agreed 
as  to  what  should  find  a  place  therein.  Three  great  sub- 
jects, however,  always  should  be  included:  the  structure 
of  government,  the  division  of  powers,  and  the  bill  of 
rights.  The  boundaries  of  the  states  are  generally  included, 
and  a  schedule  is  necessary  when  one  Constitution  is  peace- 
fully substituted  for  another.  The  tendency  of  modern 
Constitutions  is  to  include  much  matter  on  the  subject  of 
administrative  laws.     It  is  impossible,  however,  to  lay  down 


IQ2  putney's  bar  examination  review 

any  absolute  rules  as  to  what  must  be  included  or  excluded. 
Any  rule  of  law,  to  which  the  people  of  the  state  may 
attach  a  sufficient  degree  of  importance  properly  finds  a 
place  in  its  Constitution. 

Classification  of  Constitutions. 
Constitutions  are  generally  said  to  be  either  written  or 
unwritten.  Written  Constitutions  are  also  described  as 
conventional  or  enacted  Constitutions,  and  unwritten  Con- 
stitutions as  cumulative  or  evolved.  A  written,  conven- 
tional or  enacted  Constitution  is  one  which  is  adopted  by 
the  people  of  the  country,  at  some  definite  time,  and  con- 
tained in  some  written  instrument.  Except  so  far  as  this 
is  modified  by  amendments  to  the  Constitution,  a  written 
Constitution  is  adopted  at  one  time  and  contained  in  a 
single  instrument.  An  unwritten,  cumulative  or  evolved 
Constitution  is  one  which  has  grown  up  by  gradual  evolu- 
tion, which  is  not  contained  in  any  single  instrument  and 
is  not  entirely  reduced  to  writing. 

Federal  and  State  Constitutions. 
An  important  distinction  is  the  one  which  must  be  made 
between  the  Constitution  of  the  United  States  and  those 
of  the  several  states.  The  Government  of  the  United  States 
is  one  of  delegated  powers,  while  those  of  the  states  are 
governments  of  residuary  original  sovereignty.  The  Gov- 
ernment of  the  United  States  is  one  established  by  the 
joint  action  of  the  several  states  and  the  people  of  the  sev- 
eral states,  by  their  adoption  of  the  United  States  Con- 
stitution. Within  its  sphere  of  operation,  the  Government 
of  the  United  States  is  supreme,  but  the  scope  of  such 
sphere  is  limited  to  the  grants  of  the  Constitution.  Neither 
the  United  States  Government,  nor  any  department  thereof, 
can  exercise  any  authority  not  affirmatively  given  to  them, 
either  expressly  or  by  implication,  by  the  Constitution. 
The  governments  of  the  states  existed  before  the  adoption 
of  our  Federal  Constitution,  which  contained  all  the  pow- 
ers which   the    States   consented  to   surrender  to   the   Na- 


CONSTITUTIONAL    LAW 


163 


tional  Government.  All  poweis  not  thus  surrendered  re- 
mained with  the  states  or  the  people.  A  State  Constitution 
is,  therefore,  entirely  one  of  restriction  on  its  government 
as  far  as  the  question  of  its  powers  are  concerned.  There 
is  no  provision  in  any  State  Constitution  similar  to  Section 
8  or  Article  I  of  the  United  States  Constitution,  consisting 
of  a  list  of  powers  granted  to  the  legislative  body.  The 
state  Legislatures  have  full  general  legislative  power,  ex- 
cept so  far  as  it  is  prohibited  to  them  or  abridged  by  the 
Constitution  of  the  United  States  and  the  Federal  Statutes 
and  Treaties  made  in  pursuance  thereof,  or  by  the  Consti- 
tution in  the  particular  state. 

The  Co-existing  Governments. 
Throughout  all  the  time  that  has  elapsed  since  the  adop- 
tion of  the  Constitution,  there  have  been,  and  are  at  the 
present  time,  two  distinct  governments  within  the  terri- 
torial limits  of  each  state  of  the  United  States.  Each  of 
these  governments  has  its  separate  departments;  each  has 
its  distinct  laws;  and  each  has  its  own  tribunals  for  their 
enforcement.  Neither  government  is  allowed  to  encroach 
upon  the  proper  jurisdiction  of  the  other,  nor  to  authorize 
any  interference  therewith  by  its  executive  or  judicial  of- 
ficers. The  I'nited  States  Constitution  recognizes  and  pro- 
tects both  governments,  but  its  relation  to  each  is  very 
different. 

The  United  States  Constitution  contains  no  grant  of  pow- 
ers to  the  state  governments :  these  existed  prior  to  the 
Federal  Constitution :  and  at  the  time  of  its  adoption,  ex- 
cept for  the  slight  vestT-ictions  contained  in  the  Articles  of 
Confederation,  were  possessed  of  full  sovereign  powers. 
The  United  States  Constitution  was  thus  a  grant  of  powers 
to  the  United  States  Government,  and  a  consequent  limita- 
tion upon  those  of  the  states. 

The  United  States  Government  is  entirely  the  creation  ol 
the  Constitution,  it  is  a  government  of  delegated  powers, 
possessing  no  authority  not  expressly  or  by  implication 
granted  to  it  by  the  instrument  which  created  it.    The  state 


164  putney's)    liAK   EXAMINATION    REVIEW 

governments  exist  independently  of  their  Constitutions  and 
possess  all  such  rights  as  are  not  expressly  or  by  applica- 
tion denied  to  them  by  their  own  Constitution  or  by  that 
of  the  United  States.  The  Government  of  the  United 
States  is  one  of  delegated  powers,  and  that  of  a  state  of 
residuary  original  sovereignty. 

Distribution   of   Legislative   Powers   Between  the   Govern- 
ment of  the  United  States  and  the  Gov- 
ernments of  the  States. 

The  greater  part  of  the  controversies  relative  to  the 
respective  powers  of  the  governments  of  the  United  States 
and  of  the  states  which  have  arisen  out  of  the  attempted 
exercise  of  some  particular  legislative  pow^r  by  the  latter. 
Legislative  powers,  in  relation  to  their  position  under  the 
Constitution  of  the  United  States,  may  be  divided  into  five 
classes. 

First.  Those  powers  denied  by  the  Constitution  both  to 
the  United  States  and  to  the  several  states.  The  powers 
thus  denied  to  both  are  the  passage  of  any  bill  of  attainder 
or  ex  post  facto  law,  the  granting  of  any  title  of  nobility, 
or  the  depriving  any  person  of  life,  liberty  or  property 
without  due  process  of  laAv.  Most  of  the  restrictions  con- 
tained in  the  last  three  amendments  also  restrain  both. 

Second.  Those  poAvers  which  the  Constitution  neither 
grants  to  Congress  nor  prohibits  to  the  states;  here  are 
included  those  legislative  powers  which  constitute  the  main 
part  of  the  state's  legislative  jurisdiction.  Congress  has  no 
more  right  to  exercise  a  power  not  granted  to  it,  either  ex- 
pressly or  by  implication,  than  it  has  to  exercise  one  ex- 
pressly denied  to  it. 

Third.  The  third  class  consists  of  those  powers  denied 
by  the  Constitution  to  the  United  States  and  not  prohibited 
to  the  states.  The  legislative  powers  included  in  this  class 
are  generally  denied  to  the  state  legis]atures  by  the  state 
Constitution. 

Fourth.  Those  powers  -which  the  Constitution  grants  to 
Congress   and  prohibits  to  the   states.     Here   are  included 


CONSTITUTIONAL    LAW  165 

most  of  the  great  powers  of  the  Federal  Government — 
the  authority  over  foreign  affairs,  the  power  of  peace  or 
war,  the  power  to  lay  duties  or  imports,  to  coin  money  and 
regulate  its  value. 

There  is  comparatively  slight  possibility  for  controversy 
in  respect  to  powers  which  are  included  in  any  of  these 
four  classes  of  powers,  the  difficulties  have  mainly  arisen 
with  relation  to  the  fifth  and  remaining  class. 

Fifth.  In  this  class  are  included  those  powers  which  the 
Constitution  grants  to  the  United  States  Government,  with- 
out denying  them  to  the  states,  either  expressly  or  by  im- 
plication. Here  generally  both  governments  may  legislate, 
but  if  the  laws  of  any  state  conflict  with  those  of  the 
United  States  then  the  latter  prevail. 

A  few  legislative  powers  stand  in  an  anomalous  position, 
being  denied  to  the  states  and  neither  denied  nor  granted 
to  the  United  States  Government.  Most  important  among 
these  powers  is  that  to  emit  bills  of  credit. 

The  Natural  Division  of  Governmental  Powers. 

The  powers  and  duties  of  every  government  fall  natural- 
ly into  three  divisions,  commonly  called  the  Legislative, 
Executive  and  Judicial  Departments.  This  division  has 
been  recognized  by  jurists  from  the  earliest  times.  Aristo- 
tle says:  "In  every  form  of  government  there  are  three 
departments,  and  in  every  form  the  wise  lawgiver  •  must 
consider  what  in  respect  to  each  of  these  is  for  its  interest. 
If  all  is  M-ell  with  these,  all  must  needs  be  well  with  it, 
and  the  difference  between  forms  of  government  are  dif- 
ferences in  respect  to  these.  Of  these  three  one  is  the  part 
which  deliberates  about  public  affairs,  and  the  second  is 
that  which  has  to  do  with  the  offices  *  *  *;  and  the 
third  is  the  judicial  part."  The  separation  and  independ- 
ence of  these  three  departments,  from,  and  of,  one  an- 
other, is  one  of  the  most  characteristic  features  of  a  free 
country. 

The  Supreme  Court  has  thus  indicated  the  proper  spheres 
of  these  three  departments:    ''The  difference  between  the 


166  putney's  bak  examination  review 

departments  uTidonbtedly  is,  tliat  tlu;  legislative  makes,  the 
executive  executes,  and  the  judiciary  construes  the  law; 
but  the  maker  of  the  law  may  conuiiit  something  to  the 
discretion  of  the  other  departments,  and  the  precise  bound- 
ary of  this  power  is  a  subject  of  delicate  and  difficult  in- 
quiry, into  which  a  court  will  not  enter  unnecessarily." 
(AVayman  vs.  Southaid.   10  AVheaton,  1.) 

Separation  of  Departments  Under  the  Government  of  the 
United  States. 

It  was  in  the  United  States  that  the  doctrine  of  the  in- 
dependence and  equality  of  the  three  departments  of  gov- 
ernment was  first  worked  out  to  its  completion.  The  gov- 
ernment of  the  United  States  is  one  of  cliecks  and  balances, 
and  provisions  are  inserted  to  enable  each  department  to 
protect  itself  against  the  others.  The  President  is  given 
the  veto  power  to  protect  himself  against  the  legislative 
branch  of  the  government;  the  independence  of  the  ju- 
diciary is  secured  by  their  ])0Aver  to  declare  acts  of  Con- 
gr-ess  unconstitutional ;  while  to  Congress  is  given  the 
power  of  impeachment,  as  a  Aveapon  against  encroachment 
on  the  part  of  either  the  executive  or  the  judiciary.  The 
most  startling  innovation  contained  in  our  Constitution, 
from  the  standpoint  of  all  foreign  governments,  was  the 
power  given  to  the  courts  of  disregarding  acts  of  the  leg- 
islative department,  when  the  same  were  in  conflict  with 
the  Federal  Constitution.  Such  a  power  is  essential  to  the 
preservation  of  the  Constitution.  The  alternative  to  this 
would  be  that  the  legislative  body  could  at  any  time 
abrogate  the  fundamental  laws  of  the  country  by  an  or- 
dinary legislative  act.  It  is  this  power  granted  to  the 
courts  which  alone  makes  the  distinction  between  consti- 
tutional and  statutory  provisions  of  practical  importance. 

The  provisions  of  the  United  States  Constitution  as  to  the 
division  of  powers  and  as  to  these  checks  and  balances  w^ere 
mainly  in  accord  Avith  the  existing  law\s  on  these  subjects 
in  a  majority  of  the  states;  they  w^ere.  however,  a  radical 
departure  from  the  Articles  of  Confederation.     In  the  Ar- 


CONSTITUTIONAL    LAW  167 

tides  of  Confederation  the  powers  of  the  Government  were 
centered  in  the  legislative  department;  there  were  no  ex- 
ecutive, and  the  most  important  of  the  judicial  powers  were 
vested  in  special  committees  appointed  by  Congress.  The 
Virginia  and  New  Jersey  plans  in  the  Constitutional  Con- 
vention both  provided  for  this  three-fold  division  of  pow- 
ers, but  the  Virginia  plan  alone  contained  this  idea  in  its 
complete  form. 

The  Federal  Constitution  blocked  out  the  allotment  of 
power  to  the  three  different  departments  and,  as  a  gen- 
eral rule,  powers  granted  to  one  department  belong  to  that 
one  exclusively  and  cannot  be  exercised  by  one  of  the 
others;  one  department  should  not  encroach  upon  the 
proper  jurisdiction  of  either  of  the  others.  Each  of  the 
three  departments  should  possess  powers,  in  their  re- 
spective spheres,  co-extensive  with  these  possessed  by  either 
of  the  others. 

Primacy  of  the  Legislative  Department. 

AVhile,  however,  in  theory  in  the  United  States  the  three 
dei)artments  are  supposed  to  be  equal  in  dignity  and  power, 
still  no  government  has  ever  yet  been  organized  in  which 
some  one  of  these  departments  did  not  have  a  certain  su- 
periority over  the  other  two.  In  all  free  governments  this 
department  almost  of  necessity  must  be  the  legislative; 
and  such  is  the  case  in  the  United  States. 

There  are  many  reasons  w^hy  this  primacy  of  the  legis- 
lative department  is  of  advantage  to  free  institutions.  The 
larger  number  among  whom  the  legislative  power  is  di- 
vided renders  any  concerted  action  for  its  abuse  more  dif- 
ficult, and  the  (in  general)  shorter  term  of  legislative  offi- 
cers has  also  a  strong  similar  tendency.  Again  the  open 
discussions  which  generally  exist  in  legislative  bodies,  to- 
gether with  tile  length  of  time  which  generally  elapses 
before  final  action  is  taken  therein,  enables  public  opinion 
to  make  itself  strongly  manifested  against  any  proposed 
violent  abuse  of  power.  Any  usurpation  of  power  on  the 
part  of  the  legislative  is  also  checked  by  the  requirement 


168  putney's  bar  examination  review 

of  a  two-thirds  vote  to  enable  it  to  exercise  its  supreme 
functions — the  passage  of  a  measure  over  the  President's 
veto,  or  the  impeachment  of  a  pul)lic  official. 

The  Legislative  Department. 

The  powers  of  the  legislative  department  of  the  United 
States  Government,  i.  e.,  of  Congress,  are  limited  to  the 
jurisdiction  granted  by  the  Constitution.  Such  jurisdic- 
tion, hoAvever,  may  be  assumed  when  granted  either  ex- 
pressly or  by  implication.  All  legislative  acts  in  excess  of 
such  jurisdiction  are  void.  AYhatever  a  legislative  body 
cannot  do  directly  it  cannot  do  indirectly.  No  judicial 
power  is  vested  by  the  Constitution  in  Congress  except  in 
cases  of  impeachment.  Congress,  however,  has  a  general 
control  over  the  judicial  department  through  the  fact  that 
the  provisions  of  the  third  article  of  the  Constitution  are 
not  self-executing  and  legislation  is  necessary  to  put  them 
into  operation.  Congress  can  at  any  time  create  or  abol- 
ish inferior  Federal  courts,  increase  or  decrease  the  num- 
ber of  judges  of  the  Supreme  or  inferior  courts,  enlarge  or 
decrease  the  jurisdiction  of  the  courts  (within  the  maxi- 
mum jurisdiction  prescribed  in  the  Constitution),  or  change 
the  procedure  in  the  courts. 

Congress  has  a  similar  control  over  the  number  and  du- 
ties of  the  officers  of  the  executive  department,  except 
those  of  the  Presideot  and  Vice-President. 

Congress  cannot  delegate  any  part  of  its  legislative  pow- 
ers either  to  the  executive  or  judicial  departments  of  the 
r^nited  States  Government,  to  any  department  of  any  state 
government,  to  any  other  body  or  to  any  individual. 

No  legislatiA'^e  body  can  bind  subsequent  legislatures  in 
matters  of  public  law  relating  to  public  subjects. 

The  Executive  Department. 

To  the  executive  department  belongs  the  execution  of 
the  laws  as  enacted  by  the  legislative  department  and  inter- 
preted by  the  judicial  department.  The  enforcement  of 
the  Constitutional  guaranty  to  a  state  of  a  republican  form 


CONbTITLTlUNAL    LAW  169 

of  government  belong  to  the  executive  department,  and 
the  decision  of  political  questions  and  the  management  of 
foreign  relations  falls  primarily  within  its  jurisdiction. 

The  pardoning  power  is  vested  by  the  Constitution  in 
the  President  as  the  head  of  the  executive  department; 
but  this  provision  is  not  exclusive  so  as  to  forbid  the  pas- 
sage by  Congress  of  general  amnesty  acts. 

No  encroachment  by  the  executive  department  upon  the 
proper  jurisdiction  of  the  judicial  department  is  permitted 
under  the  United  States  Constitution.  No  subordinate  ad- 
ministrative or  executive  tribunal  can,  consistently  with 
due  process  of  law,  enforce  its  orders  by  fine  or  imprison- 
ment, nor  has  any  administrative  body  established  by 
Congress  the  general  power  of  making  inquiry  into  the 
private  affairs  of  any  citizen. 

The  Judicial  Department. 

Under  the  constitutional  law  of  England  the  judicial 
department  is  by  far  the  weakest  of  the  three  departments 
of  government.  Nowhere  else  in  the  United  States  Con- 
stitution do  Ave  see  such  a  radical  advance  as  in  the  power 
and  protection  given  to  this  department.  The  great  power 
given  to  the  judges  of  declaring  acts  of  Congress  uncon- 
stitutional has  already  been  referred  to  and  will  be  treated 
of  in  detail  in  the  chapter  on  the  judicial  department. 

The  judiciary  department,  however,  is  not  allowed  to  en- 
croach upon  the  proper  jurisdiction  of  the  legislative  de- 
partment. The  duty  of  the  judiciary  is  to  interpret  the 
Constitution  and  the  acts  of  Congress,  not  to  itself  legis- 
late. Judicial  power  is  to  be  exercised  for  the  purpose  of 
giving  effect  to  the  will  of  the  legislature,  not  that  of  the 
judge,  courts  must  expound  the  law  as  they  find  it. 

Courts  cannot  inquire  into  the  motives  of  a  legislative 
body  in  passing  an  act,  nor  into  the  question  whether  an 
act  is  unwise,  unjust  or  oppressive.  The  remedy  for  an 
unjust  or  inconvenient  law  lies  Avith  the  people,  through 
the  election  of  legislative  officers,  not  with  the  courts.  The 
power  of  confiscation  and  banishment  is  not  judieial.  lint 


170  putney's    BAU    EXAMINATIUN    ULVIEW 

legislative.  No  court  can  question  the  validity  of  an  ex- 
ecuted and  ratified  treaty,  but  the  construction  of  treaties 
is  within  the  province  of  the  judiciary.  The  judicial  de- 
partment cannot  encroach  upon  the  executive.  The  writ  of 
mandamus  cannot  be  used  to  direct  or  control  an  executive 
officer  in  the  discharge  of  an  executive  duty  involving  the 
exercise  of  judgment  or  discretion,  nor  can  the  courts  in- 
terfere in  political  questions.  No  nonjudicial  powers  can  be 
conferred  on  Unitetl  States  courts  oi-  judges. 

The  Powers  of  Congress. 

The  government  of  the  United  States  is  one  of  delegated 
powers,  it  rests  upon  the  Constitution  of  the  United  States, 
and  has  only  such  powers  as  are  therein  granted  to  it.  The 
grants  of  powers  to  Congress,  the  legislative  department  of 
the  government  (except  the  grant  of  powers  to  govern  ter- 
ritory belonging  to  the  United  States  but  outside  of  the 
limits  of  the  United  States  itself),  are  contained  in  the 
eighth  section  of  the  first  article  of  the  Constitution.  The 
powers  thus  granted  are  given  only  in  their  rough  outline ; 
the  Constitution  enumerates  these  powers  but  does  not 
define  them.  The  powers  granted  by  the  Constitution  to 
Congress  are  the  maximum  which  it  can  exercise.  Con- 
gress is  not  compelled  to  use  all  the  powers  granted  to  it ; 
it  may  entirely  disregard  certain  of  these  powers,  or  may 
exercise  them  only  in  part.  When  Congress  fails  to  legis- 
late on  any  subject  over  which  they  have  been  given  juris- 
diction but  which  has  not  been  expressly  denied  to  the 
states,  then  the  states  may  legislate  on  the  subject.  It  is 
not  required  that  a  power  be  expressly  granted  to  Con- 
gress, it  is  sufficient  if  it  be  granted  to  it  by  implication. 

The  eighth  section  of  the  first  article  contains  eighteen 
clauses,  each  containing  the  grant  of  certain  powers  to 
Congress,  These  eighteen  clauses  will  be  taken  up  in 
order. 

Powers  and  Duties  of  the  President. 

The  position  of  the  President  of  the  United  States  does 
not   exactly   correspond  to   the   position   of  any  official  of 


CONSTITUTIONAL    LAW  171 

any  other  country.  In  particular  it  does  not  correspond 
either  with  that  of  the  King  or  of  the  Prime  Minister  in 
England.  "In  the  distribution  of  political  power  between 
the  great  deparinients  of  government,  there  is  such  a  wide 
difference  between  the  power  conferred  on  the  President 
of  the  United  States  and  the  authority  and  sovereignty 
which  belongs  to  the  English  crown,  that  it  Avould  be  alto- 
gether unsafe  to  reason  from  any  supposed  resemblance 
between  them,  either  as  regards  conquest  in  war  or  any 
other  subject  where  the  rights  and  powers  of  the  executive 
arm  of  the  Government  are  brought  into  question.  Our 
own  Constitution  and  form  of  government  must  be  our  only 
guide."     (Fleming  vs.  Page,  9  Howard  603.) 

The  powers  granted  by  the  Constitution  to  the  Presi- 
dent are  expressed  in  very  general,  or  even  vague  terms, 
and  as  there  have  been  few  decisions  by  the  Supreme  Court 
on  these  grants  and,  as  above  stated,  no  precedents  which 
can  be  referred  to,  the  exact  extent  of  the  authority  given  to 
the  President,  under  some  of  the  grants,  is  as  yet  not  en- 
tirely settled.  Certain  Presidents  have  claimed  and  exer- 
cised more  authority  than  have  others. 

The  powers  of  the  President  may  be  divided  into  two 
classes,  (1)  those  which  are  conferred  upon  him  directly 
by  the  Constitution;  and  (2)  those  which  are  conferred 
upon  him  by  act  of  Congress.  In  the  execution  of  powers 
of  the  first  class  he  is  independent  of  Congress,  or  even  of 
the  courts.  "By  the  Constitution  of  the  United  States  the 
President  is  invested  with  certain  important  political  poAv- 
ers,  in  the  exercise  of  which  he  is  to  use  his  own  discretion, 
and  is  accountable  only  to  his  country  in  his  political  char- 
acter and  to  his  own  conscience."  (Marbury  vs.  Madison, 
1  Count,  137.)  Where  the  power  is  granted  by  Congress 
the  President  is  subject  to  the  control  of  Congress  in  ex- 
ercising such  poAver. 

In  general  the  duties  of  the  President  are  executive 
rather  than  legislative.  It  is  his  duty  to  execute  the  laws 
passed  by  Congress  rather  than  to  legislate  himself.  The 
whole  system  of   government   created   bv  the   Constitution 


172  putney's  bak  examination  he  view 

is  one  of  division  of  powers  and  of  cheeks  and  balances. 
Nither  department  should  be  alloAved  to  usurp  powers 
properly  belonging  to  either  of  the  others.  The  true  rule 
to  apply  where  disputes  arise  between  the  executive  and 
the  legislative  departments  of  the  Government  seems  to 
be  this:  If  the  power  m  question  is  executive  or  adminis- 
trative in  its  nature,  all  points  of  doubt  should  be  decided 
in  favor  of  the  President ;  if  on  the  other  hand  the  power 
betakes  rather  of  legislative  character,  then  all  questions^ 
of  doubt  should  be  resolved  in  favor  of  Congress. 

The  Judicial  Department. 
Among  the  changes  made  by  the  Constitution  was  the 
establishment  of  a  strong  national  judiciary  with  extensive 
powers.  The  third  article  of  the  Constitution  is  devoted  to 
the  judicial  department.  The  first  section  provides  for  the 
establishment  of  the  courts  and  is  as  follows:  "The  ju- 
dicial powder  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  courts  as  the  Con- 
gress may  from  time  to  time  ordain  and  establish.  The 
judges  both  of  the  Supreme  and  inferior  courts  shall  hold 
their  offices  during  good  behavior,  and  shall  at  stated  times 
receive  for  their  services  a  compensation,  which  shall  not 
be  diminished  during  their  continuance  in  office."  A  dis- 
tinction is  to  be  noticed  between  the  provision  for  the  Su- 
preme Court  and  that  for  the  inferior  courts  of  the  United 
States.  The  former  was  created  directly  by  the  Constitu- 
tion, while  the  establishment  of  the  latter  was  made  op- 
tional with  Congress.  The  number  and  character  of  the 
inferior  courts,  if  any  were  established,  were  left  to  Congress 
to  determine.  Congress  was  given  the  power  to  determine 
the  number  of  Supreme  Court  judges.  The  judges  of  the 
Supreme  Court  have  the  right,  in  virtue  of  their  office,  to 
sit  in  the  inferior  courts  of  the  United  States,  each  Su- 
preme Court  judge  being  assigned  to  one  of  the  nine 
judicial  courts. 


CONSTITUTIU.NAL    LAW  173 

Power  of  Judges  to  Declare  Acts  of  Congress  Unconsti- 
tutional. 
The  most  noticeable  characteristic  of  the  judicial  depart- 
ment of  the  United  States  Government,  and  the  feature  of 
the  United  States  Constitution  which  has  attracted  the 
most  attention  among  foreign  students  and  statesmen,  is 
the  right  of  United  States  judges  to  declare  unconstitu- 
tional acts  of  the  legislative  department.  Such  a  power 
has  never  been  possessed  by  the  courts  of  any  European 
government.  The  courts  do  not  exercise  this  power  of 
declaiming  directly  by  sotting  aside  the  act  when  passed 
by  the  legislative  body,  but  only  indirectly,  when  the  con- 
stitutionality of  the  act  becomes  involved  in  the  decision 
of  some  (luestion  which  comes  before  them  in  the  regular 
course  of  legal  procedure. 

Extent  of  the  Judicial  Powers  of  the  United  States. 

The  judicial  power  of  the  United  States  is  part  of  the 
grant  of  powers  from  the  states  to  the  National  Govern- 
ment. Like  all  other  departments  of  the  United  States 
Government,  the  power  of  the  judiciary  is  derived  entirely 
from  the  Constitution.  All  judicial  powers  not  granted  by 
the  Constitution  to  the  Federal  courts  are  reserved  to  the 
stale  courts. 

Bill  of  Rights. 

The  term  "Bill  of  Rights"  was  first  used  as  the  title 
of  the  statute  passed  by  the  English  Parliament  after  the 
Revolution  of  1688-9,  for  the  purpose  of  securing  to  the 
English  people  those  political  and  civil  rights  of  which  the 
crown  had  attempted  to  deprive  them  during  the  Stuart 
period.  It  was  the  last  of  the  "three  great  charters  of  Eng- 
lish liberty." 

This  term  is  now  applied  to  that  portion  of  a  constitution 
designed  to  guarantee  the  individual  rights  of  the  citizen 
and  to  protect  him  and  his  ])r()])erty  against  oppression  by 
the  Government. 

The  Bill  of  Rights  in  tlie  T'nited  States  Constitution  was 
expressed  almost  of  ner-essity  in  broad   general  terms;  and 


]74  putney's    BAll    EXAMINATION    UEVIEW 

its  framers  mainly  employed  in  the  work  phrases  and  max- 
ims already  well  known  in  English  history.  Their  original 
English  meaning,  however,  cannot  always  be  held  to  follow 
them  into  the  Federal  Constitution. 

"It  necessarily  happened,  therefore,  tliat  as  these  broad 
and  general  maxims  of  liberty  and  justice  held  in  our  sys- 
tem a  different  place  and  performed  a  different  function 
from  their  position  and  office  in  English  Constitutional  his- 
tory and  law,  they  would  receive  and  justify  a  correspond- 
ing and  more  comprehensive  interpretation.  Applied  in 
England  only  as  guards  against  executive  usurpation  and 
tyranny,  there  they  have  become  bulwarks  also  against 
arbitrary  legislation ;  but  in  that  application,  as  it  would 
be  incongruous  to  measure  and  restrict  them  by  the  ancient 
customary  English  law,  they  must  be  held  to  guarantee 
not  particular  iorms  of  procedure,  but  the  very  substance 
of  individual  rights  to  life,  liberty  and  property."  (Ilur- 
tools  vs.  California,  110  U.  S.,  516.) 

A  liberal  and  elastic  interpretation  must  thus  be  given 
the  United  States  Bill  of  Rights ;  one  which  \v\\l  tend  to 
secure  substantial  rights  of  liberty  and  safety  to  the  indi- 
vidual rather  than  one  based  on  an  exact  adherence  to  the 
technical  meaning  generally  accorded  to  its  terms.  The 
common  law  meaning  of  the  terms  employed  in  the  Bill  of 
Rights,  however,  is  generally  referred  to  in  aid  of  their 
interpretation.  This  is  done,  not  because  the  common  law 
is  part  of  the  law  of  the  United  States,  for  it  is  not,  but 
because  this  is  supposed  to  give  to  these  expressions  the 
meaning  which  they  had  in  the  minds  of  the  framers  and 
adopters  of  the  Constitution  and  the  first  eight  amend- 
ments. 

Ex  Post  Facto  Laws. 

The  term  "ex  post  facto  laws"  applies  to  criminal  leg- 
islation only.  The  Constitution,  however  deals  with  sub- 
stance and  not  with  form,  hence  any  statute  depriving  citi- 
zens of  rights  for  past  misconduct  is  void;  however  dis- 
guised, the  inhibition  against  ex  post  facto  laws  cannot 
be  evaded  by  giving  civil  form  to  what  is  in  sulistance 
criminal.     The  following  clnsses  of  laws  are  held  to  l)e  ex 


COXSTITUTIONAL    LAW  175 

post  facto  in  tlie  case  of  Calder  v.  Bull.  First.  "Every 
law  that  makes  an  action  done  before  the  passing  of  the 
law,  and  which  was  innocent  w^hen  done,  criminal,  and 
punishes  such  action.  Second.  Every  law  that  aggravates 
a  crime,  or  makes  it  greater  than  it  was  when  committed. 
Third.  Every  law  that  changes  the  punishment  and  in- 
flicts a  greater  punishment  than  the  law  annexed  to  the 
crime  when  committed.  Fourth.  Every  law  that  alters 
the  legal  rules  of  evidence,  and  receives  less  or  different 
testimony  than  the  law  required  at  the  time  of  commission 
of  the  offense  in  order  to  convict  the  offender." 

Government  of  Territory  Belonging  to  the  United  States 
But  Not  Included  Within  the  Limits  of  Any  State. 

There  is  not,  and  never  has  been,  any  such  legal  question 
as  to  whether  (to  use  a  popular  expression)  "the  Constitu- 
tion follows  the  flag."  The  government  of  the  United 
States  rests  entirely  upon  the  powers  granted  to  it  by  the 
Constitution,  if  the  Constitution  under  any  circumstances 
or  in  any  place,  ceases  to  be  operative,  the  National  Gov- 
ernment must  of  necessity  cease  to  have  any  power  to  act. 
The  question  often  arises,  however,  as  to  the  application 
of  a  certain  portion,  or  portions,  of  the  Constitution.  The 
question  as  to  the  degree  of  power  possessed  by  Congress 
over  the  territories  and  colonies  of  the  United  States  is 
not  whether  the  Constitution  applies  at  all  in  these  cases, 
but  as  to  what  part  of  the  Constitution  so  applies. 

A  summary  of  the  decisions  in  these  cases  of  Hawaii  vs. 
Mankichi,  Dorr  vs.  United  States,  United  States  vs.  Ras- 
raussen,  and  Kepner  vs.  United  States,  would  establish  the 
following  general  propositions : 

(1)  The  protection  contained  in  the  Bill  of  Rights  of 
the  United  States  Constitution  does  not  attach  to  residents 
of  territory  under  the  authority  of  the  United  States  gov- 
ernment but  outside  the  limits  of  the  states  themselves. 

(2)  Such  rights  can  be  given  to  the  residents  in  such 
territory  either  by  legislation  by  Congress,  or  by  treaty 
with  the  country  from  which  such  territory  is  acquired. 

(3)  Where  such  rights  are  given  by  terms  having  an 


176  putney's  bar  examination  review 

established  meaning  in  the  common  law,  these  terms  must 
be  interpreted  in  accordance  with  their  meaning  under  the 
common  law. 

The  cases  of  De  Lima  vs.  Bidwell  and  Downes  vs.  Bidwell 
taken  in  connection  fix  the  status  of  the  territories  and 
colonies  of  the  United  States  as  follows: 

1st,  they  are  not  foreign  territory;  2nd,  they  are  not  a 
l)art  of  the  United  States:  3rd,  they  can  only  ho  described 
as  territory  belonging  to  the  United  States. 

Regulation   of  Interstate  Relations  by  the  United   States 

Constitution. 

The  main  purpose  of  the  United  States  Constitution  was 
the  establishment  of  the  Federal  government  and  the  regu- 
lation of  the  relations  between  this  new  central  govern- 
ment and  the  governments  of  the  states.  A  small  portion, 
however,  of  the  Constitution,  is  concerned  with  the  mutual 
relations  of  the  states.  The  provisions  of  this  character  ar<' 
mainly  taken  from  the  Articles  of  Confederation  and  are 
contained  in  the  fourth  article  of  the  Constitution.  Except 
for  the  provisions  contained  in  the  United  States  Constitu- 
tion, the  states  in  their  relations  to  one  another  are  in  the 
position  of  foreign  countries.  The  laws  of  one  state  are 
foreign  laws  in  another  state,  and  the  same  principles  of 
Private  International  Law  apply,  in  the  main  between  two 
states  of  this  Union  as  between  two  foreign  countries. 


CHAPTER  XIX. 
CONFLICT  OF  LAWS. 

The  subject  of  "Conflict  of  Laws,"'  or  "Private  Interna- 
tional Law,"  is  the  study  of  certain  legal  principles  which 
determine  the  preliminary  question  as  to  the  laws  of  what 
state  or  country  are  to  be  applied  in  the  determination  of 
the  real  question  at  issue. 

It  is  generally  said  that  the  courts  of  one  state  or  coun- 
try apply  the  laws  of  another  state  or  country  out  of 
comity.  A  more  accurate  statement  would  be  that  foreign 
laws  are  applied  for  the  purpose  of  doing  justice  between 
the  litigants.  A  brief  statement  of  the  underlying  basis 
of  this  branch  of  the  law  is,  that :  a  court  will  apply  the 
laws  of  another  state  or  country  when  such  action  is  neces- 
sary in  order  to  do  justice  between  the  parties  to  the  action 
before  the  court. 

There  are  five  classes  of  cases  where  a  court  Avill  never 
apply  the  laws  of  another  state  or  country. 

(1)  Laws  against  the  established  public  policy  of  the 
forum ; 

(2)  Laws  contrary  to  the  generally  recognized  standard 
of  good  morals; 

(3)  Laws  which  Avould  work  an  injustice  to  citizens  of 
the  forum; 

(4)  Penal  laws; 

(5)  Laws  which  would  affect  the  title  to  land  situated 
within   the  jurisdiction   of  the  forum. 

Situs,  Domicile  and  Residence. 
Every  person  has  both  an  actual  si1:us,  a  legal  situs,  or 
domicile,  a  residence,  and  a  citizenship  in  some  country. 
The  actual  situs  of  a  person  is  the  place  of  his  actual  physi- 
cal presence.  The  domicile  of  a  person  is  the  place  which 
he  considers  as  his  permanent  home. 

177 


178  putney's  bar  kxaminatiox  uevikw 

Minor  in  his  '" Conflict  of  Laws,"  thus  distinguishes  be- 
tween domicile  and  residence: 

"It  must  be  observed  that  domicile  is  also  to  be  dis- 
tinguished from  a  mere  residence,  of  a  temporary  charac- 
ter, not  intended  to  be  permanent.  Residence  in  a  state 
is  usually  said  to  be  permanent.  Residence  in  a  state  is 
usually  said  to  be  necessary  to  domicile,  but  it  must  be  a 
residence  of  a  permanent,  not  of  a  temporary  or  limited 
character.  AVhen  the  term  'resident,'  or  'residence,'  is 
used  in  connection  with  private  international  law,  it  is 
generally  used  in  the  sense  of  domicile,  though  not  always. 

"The  Virginia  case  of  Long  vs.  Ryan  is  a  good  illustra- 
tion of  the  distinction  between  mere  residence  and  domi- 
cile. In  that  case,  a  person  domiciled  in  Washington  came 
to  Virginia  intending  to  remain  there  about  nine  months, 
until  he  should  complete  a  contract  into  which  he  had 
entered,  proposing  afterwards  to  leave  Virginia.  His  prop- 
erty "was  attached  in  Virginia  under  a  statute  pei-mitting 
attachments  against  'non-residents,'  but  the  court,  not- 
withstanding his  domicile  in  "Washington,  held  him  to  be  a 
resident  of  Virginia,   and  dismissed  the   attachment." 

A  person  is  a  citizen  of  the  country  to  whom  he  owes 
political  allegiance. 

As  to  its  extent,  domicile  is  divided  into  (1)  national. 
(2)  quasi-national,  and  (3)  municipal. 

Domicile  is  also  classified  as:  (1)  Domicile  of  origin: 
(2)  constructive  domicile;  and  (3)  domicile  of  choice. 
Domicile  of  origin  is  the  domicile  assigned  to  a  person  at 
the  time  of  his  birth.  A  legitimate  child  takes  the  domicile 
of  its  father,  an  illegitimate  child  that  of  its  mother,  and 
a  foundling  that  of  the  place  where  he  is  found. 

The  constructive  domicile  of  an  infant  is  governed  hy 
the  same  principles  as  its  domicile  of  origin. 

The  constructive  domicile  of  a  married  woman  is  that  of 
her  husband.  If  a  husband  deserts  his  wife,  she  has  the 
right  to  acquire  a  new  domicile  for  all  purposes.  If.  how'- 
ever,  a  wnfe  leaves  her  husband,  oven  if  for  justifiable  rea- 
sons, she  has  no  power  to  acquire  a   general  domicile,  but 


CUNFLICT    OF    LAWS  179 

may  acquire  a  special  domicile  tor  the  purpose  of  suing-  for 
divorce. 

The  domicile  of  an  insane  person  is  generally  referred 
to  as  a  constructive  domicile.  This  is  incorrect,  however, 
as  no  person  has  the  power  to  change  the  domicile  of  an 
insane  person  and  his  domicile  must  remain  Avhat  it  was 
at  the  time  he  became  insane. 

Three  elements  are  necessary  in  the  acquisition  of  a  dom- 
icile of  choice:  (1)  The  party  must  be  sui  juris;  (2)  he 
must  be  in  the  place  of  domicile;  and  (3)  he  must  actually 
choose  such  place  as  his  domicile.  All  these  three  elements 
must  coincide  in  point  of  time. 

The  four  principal  rules  governing  domiciles  are  as  fol- 
lows: (1)  Every  person  nuist  have  a  domicile;  (2)  no  per- 
son can  have  more  than  one  domicile  at  the  same  time : 
(3)  a  person  keeps  one  domicile  until  he  acquires  another; 
and  (4)  every  person,  sui  juris,  has  the  right  to  change  his 
domicile  at  his  will. 

Situs  of  Status. 

The  status  of  an  individual  is  the  legal  relation  in  which 
that  party  stands  to  the  rest  of  the  community. 

The  capacity  of  a  person  in  the  case  of  a  voluntary  act 
is  determined  by  the  law  of  his  actual  situs  at  the  time 
the  act  was  performed. 

The  capacity  of  a  person  in  the  case  of  an  involuntary 
act  is  determined  l)y  the  law  of  his  legal  situs  or  domicile. 

The  capacity  of  a  person  to  make  a  contract  is  deter- 
mined by  the  law  of  the  actual  situs  of  the  making  of  the 
contract. 

Marriage  (as  was  shown  under  "Domestic  Relations") 
is  of  a  dual  nature.  The  capacity  of  a  person  to  make  a 
contract  of  marriage  is  determined  by  the  law  of  the  place 
where  the  marriage  is  celebrated.  All  questions  relative 
to  the  status  of  marriage  are  decided  by  the  law  of  the 
domicile  of  the  parties  at  the  time  the  question  arises. 

The  situs  of  a  divorce  is  the  place  Avhere  it  is  granted. 


180  putney's  bar  examination  ktevikw 

status  of  Legitimacy. 

If  the  question  of  legitimacy  depends  upon  the  question 
whether  or  not  there  was  a  valid  marriage  between  the 
parents  of  the  party  whose  legitimacy  is  in  question  it 
will  be  determined  by  the  laws  of  the  place  where  tlie 
marriage  is  alleged  to  have  taken  place. 

If  the  question  of  legitimacy  depends  upon  whether  ur 
not  an  illegitimate  child  was  legitimized  by  the  after  mar- 
riage of  his  parents,  the  governing  law  will  be  that  of  the 
domicile  of  the  father  at  the  time  such  marriage  is  con- 
tracted. 

The  legality  of  an  adoption  is  determined  by  the  laws 
of  the  place  where  it  is  alleged  an  adoption  took  place. 

Fiduciaries. 

A  fiduciary  occupies  two  relations:  One  towards  the 
person  to  whom  he  stands  in  the  position  of  trust,  and 
the  other  towards  the  general  public.  His  rights  and  ob- 
ligations towards  the  former  are  determined  by  the  law 
of  the  domicile  of  the  beneficiary;  his  rights  and  obligations 
towards  the  latter  by  the  same  laws  that  would  govern  if 
the  fiduciary  was  acting  in  an  individual  instead  of  a  trust 
capacity. 

Situs  of  Property. 

The  situs  of  real  property  is  always  its  actual  situs.  The 
situs  of  personal  property  is  the  domicile  of  its  owner. 

Situs  of  Debts. 
The  situs  of  debts  must  be  considered  from  a  double 
standpoint.  In  every  debt  there  is  the  obligation  on  the 
part  of  the  debtor,  and  the  right  on  the  part  of  the  cred- 
itor. Voluntary  transactions  affecting  the  right  of  the  cred- 
itor will  be  governed  by  the  law  of  the  situs  of  the  transac- 
tion, involuntary  transactions  affecting  the  right  of  the 
creditor  by  the  law  of  the  legal  situs  of  the  creditor,  and 
matters  affecting  the  liability  of  the  debtor  (in  general) 
bv  the  law  of  the  domicile  of  the  debtor. 


CONFLICT    OF    LAWS  181 

There  are  six  or  seven  theories  (each  followed  by  the 
courts  of  one  or  more  states)  as  to  the  situs  of  a  debt  for 
the  purpose  of  attachment  or  garnishment.  The  best  rule 
seems  to  be  that  a  debt  may  be  attached  wherever  service 
may  be  had  on  the  debtor. 

Situs  of  a  Contract. 

There  is  no  such  thing  as  a  general  situs  of  a  contract. 
There  is  the  situs  of  the  making  of  the  contract  (lex  cele- 
brationis), the  situs  of  its  performance  (locus  solutionis), 
the  situs  of  the  consideration  (locus  considerationis),  and 
the  situs  of  the  remedy. 

All  matters  relative  to  the  making  of  a  contract,  such  as 
the  capacity  of  the  parties,  the  required  formalities,  etc., 
are  governed  by  the  law  of  the  placo  where  the  contract  is 
made. 

All  matters  relative  to  the  performance  of  a  contract  are 
governed  by  the  law  of  the  place  where  the  contract  is 
to  be  performed. 

All  matters  relative  to  the  consideration  of  a  contract  are 
governed  by  the  law  of  the  place  where  the  consideration 
is  to  be  paid. 

All  matters  relative  to  the  remedy  are  governed  by  the 
law  of  the  place  where  the  suit  is  tried. 

Situs  of  Torts  and  Crimes. 

The  situs  of  a  tort  is  the  place  where  the  act  takes  place 
which  fixes  the  liability.  The  law  of  the  situs  of  the  tort 
fixes  the  extent  of  the  liability  of  the  defendant,  and  the 
question  as  to  who  is  the  proper  plaintiff  in  the  suit. 

A  statutory  tort  cannot  be  sued  upon  in  a  state  other 
than  that  in  which  the  right  of  action  accrued,  unless  the 
laws  of  the  forum  provide  a  proper  remedy. 

The  situs  of  a  crime  is  the  place  where  the  crime  was 
committed.  A  person  who  puts  in  motion  a  force  which 
results  in  the  commission  of  a  crime  in  another  state  may 
be  held  to  have  been  constructively  present  in  such  state 
when  the  crime  was  committed. 


182  putney's  n.\i{   kxamin  \  riox   kkvikw 

One  state  or  eountry  \vill  urvor  enforce'  tlu'  criminjil  laws 
of  another  state  or  eountry. 

Situs  of  Remedies. 
All    matters-  of  adjective   law   are   governed   by   the   lex 
fori.     This  rule  covers  the  case  of  all  matters  of  pleading, 
practice,    evidence,    limitations    of    actions    and    set-offs    or 
counter   claims. 


CHAPTER  XX. 
INTERPRETATION  AND  CONSTRUCTION. 

(Note.  Ill  this  chapter  the  rules  of  interpretation  and 
construction  of  constitutions,  statutes,  contracts,  deeds, 
wills,  etc.,  are  treated  together.) 

The  words  "interpretation  and  construction"  are  often 
used  interchangeably,  but  there  is,  nevertheless,  a  great 
distinction  to  be  observed  between  the  two  terms. 

Interpretation  is  the  process  by  which  the  proper  mean- 
ing to  be  given  to  particular  words  or  phrases  is  ascer- 
tained. It  is  the  same  process  as  is  used  in  interpreting 
something  written  in  one  language  into  another  language. 
Interpretation  can  only  take  place  if  the  text  conveys  some 
meaning. 

Construction  is  a  broader  process,  it  involves  the  idea 
of  building  up,  it  also  involves  the  drawing  of  conclusions, 
respecting  subjects  that  lie  beyond  the  direct  expressions 
of  the  text.  By  construction  we  arrive  at  the  meaning 
conveyed  by  the  spirit  of  the  text,  or  of  all  portions  of 
the  text  taken  together. 

The  interpretation  and  construction  of  all  written  in- 
struments, belongs  to  the  judicial  department  of  the  gov- 
(M-nment.  Any  legislative  body,  however,  may  insert  an 
interpretation  clause  in  any  statute  which  they  may  pass, 
and  if  they  do  so.  the  courts  will  be  bound  thereby. 

First  Principle  of  Construction. 

The  first  principle  to  be  applied  in  the  construction  of 
any  written  instrument,  whether  it  be  a  constitution,  stat- 
ute, contract,  or  wnll,  is  that  the  court  must  endeavor  to 
discover,  and  give  effect  to,  the  meaning  and  intention  of 
the  party  (or  legislative  body)  who  has  used  the  language 
which  is  being  construed.  There  are  limits,  however,  to 
the  application  of  this  principle.    If  the  parties  have  clearly 

183 


184  putney's  bar  examination  review 

said  one  tiling  in  an  instrument  of  any  kind,  the  courts 
cannot  give  to  the  instrument  an  entirely  different  mean- 
ing, even  although  the  court  feels  certain  that  what  the 
parties  said  was  not  what  they  intended  to  say. 

Other  Rules  of  Construction. 

In  construing  either  a  statute,  will  or  contract,  the  whole 
instrument  must  be  considered  together.  The  court  will 
attempt  to  give  effect  to  every  part  of  such  instrument. 
If  two  provisions  are  absolutely  repugnant  to  each  other, 
the  last  of  such  repugnant  provisions  will  prevail  in  the 
case  of  a  will  or  statute,  and  the  first  of  such  provisions 
in  the  case  of  a  deed;  provided,  in  all  the  cases  mentioned 
that  there  is  nothing  in  the  instrument  to  show  which  of 
the  repugnant  provisions  of  the  instrument,  represented 
the  real  intentions  of  the  parties  thereto. 

In  the  construction  of  all  instruments  a  construction 
which  will  render  the  instrument  legal  will  be  adopted  in 
preference  to  a  construction  which  will  render  it  illegal. 
If  the  parties,  however,  really  intended  an  illegal  meaning, 
such  a  meaning  must  be  given  to  it,  and  the  instrument 
declared  illegal  and  void.  Similarly  the  presumption  will 
always  be  against  constructions  which  will  occasion  impos- 
sibility, injustice,  inconvenience,  or  absurdity. 

Special   Presumptions  in  Statutory   Construction. 

The  following  additional  presumptions  will  be  employed 
by  the  courts  in  the  construction  of  statutes : 

(1)  Presumption  against  unnecessary  change  of  law. 
Just  as  the  courts  construe  the  whole  of  a  statute  together, 
and  attempt  to  give  force  to  every  provision  therein,  so 
the  courts  will  construe  an  old  and  new  statute  together, 
and  hold  the  former  to  be  still  in  force  to  as  great  an  ex- 
tent as  possible. 

(2)  Presumption  against  unconstitutionality. 

(3)  The  presumption  that  the  legislative  department 
has  not  exceeded  its  authority. 


INTERPRETATION    AND    CONSTRUCTION  185 

(4)  Presumption  against  statutes  in  violation  ot  good 
morals. 

(5)  Presumption  against  irrepealable   laws. 

(6)  Presumption  against  implied  change  of  laws. 

Presumptions    in    Construction    of    Contracts,    Deeds    and 

Wills. 

Words  in  a  contract  will  be  construed  most  strongly 
against  the  party  using  them. 

Words  in  a  deeil  will  be  construed  most  strongly  against 
the  grantor;  except  that  in  cases  where  the  public  is  the 
grantor,  all  words  will  be  construed  most  strongly  against 
the  grantee. 

Courts  Avill  apply  much  more  liberal  principles  in  the 
construction  of  a  will,  than  in  the  construction  of  a  deed 
or  contract. 

Intrinsic  Aids  to  Construction. 

The  intrinsic  aids  to  construction  are  those  to  be  found 
within  the  instrument  itself. 

The  most  important  intrinsic  aid  to  the  construction  of 
any  written  instrument  is  the  context. 

Punctuation  is  also  an  intrinsic  aid  which  is  sometimes 
of  importance,  but  the  court,  when  necessary  to  carry  out 
the  intention  of  the  testator,  may  disregard  both  punctua- 
tion and  grammar. 

In  the  construction  of  statutes  the  courts  may  be  aided 
by  the  titles,  preambles,  and  section  headings  (although  no 
great  degree  of  importance  can  be  attached  to  such  aids, 
except  perhaps  in  those  states  where  it  is  provided  by  the 
state  Constitution  that  the  title  of  every  act  must  accurate- 
ly designate  the  subject  thereof)  and  interpretation  clauses. 

Extrinsic  Aids. 

Extrinsic  aids  are  those  to  be  found  outside  of  the  lan- 
guage of  the  instrument  itself. 

Among  the  important  extrinsic  aids  which  may  be  used, 
in  the  construction  of  constitutions  or  statutes,  are  journals 


186  putney's    bAK    EXAMINATION    REVIEW 

of  constitutional  conventions  or  legislative  bodies,  mean- 
ings which  a  term  has  in  the  common  law  (for  example 
as  the  Supreme  Court  of  the  United  States  sought  the  com- 
mon law  meaning  of  "double  jeopardy"  which  called  upon 
to  construe  this  term  in  the  case  of  Kepner  vs.  United 
States)  the  contemporary  construction  of  a  statute,  and  the 
construction  whicli  has  been  placed  uy)on  a  statute  by  the 
executive  and  judicial  departments  of  the  government. 


CHAPTER  XXI. 
COMMON  LAW  PLEADING. 

A  pleading  is  "a  statement  in  a  logical  and  legal  form 
of  the  facts  which  constitute  the  plaintiff's  cause  of  action 
or  the  defendant's  ground  of  defense."     (1  Chit.  PL,  2,  13.) 

Common  law  pleading  is  the  name  of  that  system  of 
pleading  which  was  developed  in  civil  actions  in  England  by 
the  common  law  courts. 

Parties. 

In.England  tliere  are  various  classes  of  persons  who  may 
not  sue  or  be  sued,  but  in  the  United  States  all  persons 
have  legal  capacity  to  sue  or  be  sued,  except  that  an  alien 
enemy  cannot  bring  or  prosecute  a  suit  during  the  con- 
tinuance of  hostilities.  A  political  sovereignty  cannot  be 
sued  by  an  individual  except  by  its  own  consent. 

"One  who  has  no  i-ight  or  title  to  sue  cannot  join  as  a 
coplaintiff  with  others  Avho  have  such  right. 

"Thus,  a  stranger  to  a  contract  cannot  join  with  a  party 
thereto  in  an  action  thereon,  even  though  he  may  have  an 
interest  therein  as  a  subcontractor  or  partial  assignee  under 
one  party. 

"In  like  manner  two  or  more  persons  cannot  join  in  an 
action  ex  delicto  for  an  injury  done  to  only  one  of  them. 

"Several  persons  having  rights  of  action  against  the 
same  obligor  arising  out  of  several  and  distinct  contracts 
must  sue  separately,  and  may  not  unite  as  plaintiffs  in  one 
action  against  their  connnon  obligor  except  as  authorized 
by  statute. 

"Where  two  or  more  persons  have  a  separate  interest 
and  sustain  a  separate  damage,  they  may  and  must  sue  sep- 
arately, and  cannot  join  even  though  their  several  injuries 
were  caused  by  the  same  act.  Thus,  owners  of  property 
in  severalty  may  not  join  as  plaintiffs  in  an  action  for  an 
injury  to  such  property. 

]S7 


188  putney's  hah  examination'  ueviem- 

"'Persons  who  have  a  .sei)arate  interest,  l)ut  who  sustain 
a  joint  damage  by  reason  of  the  (lefeiuhint's  tort,  may  sin- 
either  jointly  or  separately  at  their  option. 

"Persons  who  have  a  joint  interest  must  sue  jointly  for 
an  injury  to  such  interest.  Joint  owners  of  property  must 
unite  as  plaintiffs  in  one  action  for  an  injury  thereto  or 
for  a  conversion  thereof."  (From  Encyclopedia  of  Pleading 
and  Practice,  Vol.  XV.) 

Two  or  more  parties  cannot  be  joined  as  defendants  in  one 
action  where  the  liability  of  each  depends  upon  causes  of 
action  which  are  essentially  distinct  and  several,  also  where 
one  or  the  other  of  two  persons  is  liable,  but  not  both,  such 
persons  cannot  be  joined  as  defendants,  nor  can  persons  who 
are  successively  liable,  each  for  his  own  acts  alone,  thoujjh  in 
respect  to  the  same  matter,  be  joined. 

Where  a  tortious  breach  of  dut>  is  committed  by  two  or 
more  persons,  the  plaintiff  may  elect  whether  to  sue  one  or 
all  or  any  number  of  them. 

"Several  persons  acting  independently  but  causing  to- 
gether a  single  injury  are  joint  tortfeasors  within  the  rule, 
and  may  be  either  jointly  or  severally.  In  other  words,  it 
is  not  always  essential  that  defendants  shall  have  acted  in 
concert  in  order  to  render  them  liable  as  joint  tortfeasors. 

'•'Wherever  a  duty  is  owing  by  several  and  a  breach  oc- 
curs, though  by  the  act  of  one  alone,  all  the  persons  owing 
the  duty  are  liable  to  be  sued  either  jointly  or  severally. 

"Where  a  master  or  principal  is  liable  for  the  tortious 
negligence  of  his  servant  or  agent,  it  has  been  held  that 
they  may  be  both  sued  jointly  in  one  action ;  but  this  prop- 
osition is  not  free  from  doubt,  and  there  is  much  good  au- 
thority to  the  contrary. 

"Persons  who  act  severally  and  independently,  each 
causing  a  separate  and  distinct  injury,  cannot  be  sued  joint- 
ly, even  though  the  injuries  may  have  been  precisely  sim- 
ilar in  character  and  inflicted  at  the  same  time.  A  joint 
tort  is  essential  to  the  maintenance  of  a  joint  action. 

"If  it  appears  on  the  face  of  the  pleadings  in  an  action 


COMMON    LAW    PLEADlxNG  189 

ex  contractu  that  there  are  other  parties  to  the  contract 
Avho  oiiglit  to  be  joined  as  plaintiffs,  but  are  not,  it  is  fatal 
to  the  action,  and  the  defendant  may  raise  the  objection  by 
demurrer  or  by  motion  in  arrest  of  judgment,  or  he  may 
urge  it  as  ground  for  reversal  on  error. 

"Where  it  does  not  appear  upon  the  face  of  the  plead- 
ings that  a  necessary  coplaintiff  is  omitted,  the  defendant 
may  plead  such  nonjoinder  in  abatement,  though  it  has  been 
held  that  he  should  plead  it  in  bar. 

"Even  if  the  nonjoinder  is  not  specially  pleaded  either 
in  abatement  or  in  bar,  it  is  available  to  the  defendant  un- 
der the  general  issue  as  a  ground  of  nonsuit  at  the  trial 
as  a  variance,  except  in  case  of  coexecutors  or  coadminis- 
trators, the  nonjoinder  of  whom  can  only  be  taken  advan- 
tage of  by  a  plea  in  abatement. 

"It  is  a  general  rule  in  actions  ex  delicto  that  the  non- 
joinder of  one  who  should  have  been  joined  as  a  coplaintift' 
can  be  taken  advantage  of  by  the  defendant  only  by  plead- 
ing it  in  abatement."     CTrl.) 

Actions. 

Actions  at  common  law  are  divided  into  real,  mixed  and 
l)ersonal.  Real  actions  are  those  affecting  the  ownership 
or  possession  of  real  property.  (At  an  early  period  actions 
for  the  recovery  of  specific  personal  property  were  classed 
as  real  actions.)  Mixed  actions  are  both  for  the  recovery 
of  real  property  and  damages  for  its  detention.  Personal 
actions  are  those  where  a  judgment  for  damages  against 
some  person  is  sought.  (At  the  present  time  actions  for 
the  recovery  of  specific  personal  property  are — perhaps  in- 
accurately— classed  as  personal  actions.  )  Personal  actions 
are  subdivided  into  actions  ex  contractu,  or  actions  arising 
from  contracts,  and  actions  ex  delicto,  or  actions  arising 
from  torts. 

Real  Actions. 

At  any  early  period  there  were  an  extremely  large  num- 
ber of  real  actions,  several  hundred  in  all.  These  actions 
were   divided   into   proprietary   actions,   which   determined 


190  putney's    bar    KXAMI nation    KKMl.W 

the  right  of  ownei-ship,  arid  possessory  actions,  which  iultc- 
ly  determined  the  right  of  possession. 

The  principal  proprietary  actions  were : 

The  writ  of  right,  to  recover  an  estate  in  fee  simple ; 

The  writ  of  forraedon,   to   recover  an  estate  in  fee  tail ; 

The  wa-it  of  dower,  to  recover  dower  rights;  and 

The  writ  of  advowson,  to  recover  the  right  of  presenta- 
tion to  a  benefice. 

The  princij)al  possessory  action  was  the  wn-it  of  entry, 
of  which  there  were  at  least  twelve  important  varieties. 
Other  important  possessory  actions  were  the  writ  of  quare 
impedit,  relative  to  the  })resentation  to  a  benefice,  and  three 
of  the  so-called  lesser  assizes:  those  of  novel  disseisin, 
mort  d  "ancestor,  and  darrein  presentment.  None  of  the 
above  mentioned  forms  of  real  actions  are  in  force  in  any 
state  in  this  country. 

The  action  of  ejectment  was  originally  a  ])('rs(»nal  action 
for  damages  by  a  lessee  for  years  against  his  lessor,  who 
had  ousted  him  from  possession.  It  has  survived  all  the 
ancient  real  actions  and  has  now^  become  the  sole  method 
of  trying  title  to  land  in  most  of  the  states  (e.  g.,  Illinois) 
which  still  retain  the  system  of  common  law  pleading. 

I'he  action  of  forcible  entry  and  detainer  is  a  summary 
proceeding  to  recover  possession ;  it  is  mainly  used  by  land- 
lords to  oust  tenants  for  non-payment  of  rent  or  other 
cause. 

Actions  Ex  Contractu. 

The  principal  actions  ex  contractu  are  debt,  detinue,  ac- 
count, covenant,  and  assumpsit. 

The  action  of  debt  w^as  originally  for  the  recovery  either 
of  some  specific  chattel  or  chattels,  or  some  definitely  ascer- 
tained sum  of  money.  Later  its  scope  w^as  restricted  to 
the  latter  class  of  cases.  There  were  two  great  disadvan- 
tages to  the  use  of  the  action  of  debt,  one  was  that  the  ex- 
act sum  sued  for  must  be  proved  or  the  action  failed  en- 
tirely, while  the  other  Avas  found  in  the  fact  that  the  de- 
fendant could  defend  by  means  of  'Svager  of  law"  (by 
this  is  meant  that  if  the  defendant  could  come  into  court 
Avith   twelve   persons   Avho   Avnuld    sAvear   to   their   belief   in 


COMMON    LAW    PLEADING  191 

the  merits  of  the  defendant's  cause  as  a  whole,  the  plain- 
tiff lost  his  case).  On  account  of  these  disadvantages,  the 
action  of  debt  became  practically  obsolete,  being  supplanted 
by  the  action  of  assumpsit;  and  even  although  both  of 
these  above  mentioned  disadvantages  have  now  been  re- 
moved, debt  has  never  again  come  into  general  use,  either 
in  England,  or  in  any  state  in  this  country. 

Detinue  branched  off  from  debt.  When  the  scope  of  this 
latter  action  became  limited  to  suits  for  the  recovery  of 
money,  detinue  came  into  existence  as  an  action  for  the 
recovery  of  other  personal  property.  The  principal  forms 
of  detinue  were  those  upon  bailment  (sur  bailment)  and 
upon  trover  (sur  trover).  This  action  also  could  be  de- 
feated by  the  "wager  of  law"  and  mainly  for  this  reason 
was  superseded  l)y  the  action  of  trover.  The  action  of 
detinue  was  at  first  always  stricth'  an  action  ex  contractu, 
but  later,  in  many  cases,  became  in  reality,^  an  action  ex 
delicto. 

Account,  as  its  name  implies,  is  an  action  for  accounting. 
The  action  of  account  is  one  of  the  oldest  forms  of  personal 
actions,  and  for  several  centuries  was  of  great  importance. 
While  the  action  may  still  be  brought,  at  least  in  some 
states,  it  has  fallen  into  disuse  on  account  of  the  develop- 
ment of  more  eff'ective  remedies.  In  the  case  of  compli- 
cated accounts  the  common  law  action  of  account  has  been 
supplanted  by  the  equitable  action  of  account;  and  in  the 
ease  of  simple  accounts  by  the  action  of  assumpsit. 

The  action  of  covenant  could  originally  only  be  brought 
upon  a  lease,  but  later  its  scope  was  extended  to  cover  the 
entire  field  of  instruments  under  seal.  The  action  of  cove- 
nant can  only  be  brought  by  a  party  to  the  covenant. 

The  action  of  assumpsit  has  been,  for  a  long  period, 
the  principal  action  ex  contractu.  This  action  was  one  of 
those  growing  out  of  the  Statute  of  Westminster  II  (1285), 
it  was  an  off-shoot  of  the  action  of  trespass  on  the  case, 
and,  consequently,  was  originally  an  action  ex  delicto. 
The  passage  from  the  field  of  tort  to  that  of  contract  was 
made  through  a  suit  for  deceit. 

"The  action  of  assumpsit  is  a  specialized  form  of  case 


192  putney's  bar  examination   kkview 

which  gradually  acquired  recognition  and  individuality  in 
the  fifteenth  century  as  the  proper  remedy  for  the  breach 
of  simple  promise.  It  was  not  from  any  subtle  perception 
of  the  tie  resulting  from  the  making  of  the  oral  promise 
that  the  courts  were  led  to  countenance  this  form  of  case. 
The  advance  was  due  to  a  very  natural  extension  of  the 
older  delictual  remedy  which  we  will  not  trace.  The  fact 
that  the  step  by  which  assumpsit  Avas  differentiated  from 
case  was  taken  is  not  more  surprising  than  the  fact  that 
the  courts  were  so  long  about  it. 

"By  way  of  anticipation  it  may  be  said  that  the  con- 
ception which  is  at  the  root  of  liability  in  assumpsit  is  that 
of  damage  done  by  deceitful  artifice.  Thus  if  A  contrives 
to  obtain  a  thing  of  value  from  B  on  the  faith  of  a  prom- 
ise to  do  some  act  for  B  in  the  future  and  A  subsequently 
refuses  to  fulfil  the  promise,  it  is  not  difficult  to  look  upon 
A's  refusal  or  failure  to  perform  as  being  the  culmination 
of  a  false  pretense. 

''The  situation  here  conceived  disclosed  the  existence  of 
a  detriment  to  B,  the  promise,  which  in  later  times  is  de- 
nominated the  consideration  for  the  promise,  and  also  an 
actionable  deceit  on  the  part  of  A.  The  deceit  is  of  an 
ex  post  facto  nature,  it  is  true,  since  the  presumption  of 
deceitful  intent  does  not  arise  until  the  subsequent  breach. 
But  in  a  legal  system  where  simple  promises  were  pressing 
for  recognition  as  a  source  of  legal  duty,  this  objection 
could  not  stand ;  and  accordingly  an  action  on  the  case 
in  the  nature  of  deceit  was  permitted  to  be  maintained 
upon  the  promise.  Such  was  assumpsit.  The  full  and 
final  establishment  of  the  remedy  did  not  take  place  until 
near  the  end  of  the  fifteenth  century,"  (Street's  Founda- 
tions of  Legal  Liability.  Vol.  Ill,  pp.  172-3.) 

The  scope  of  assumpsit  was  next  extended  so  as  to  fur- 
nish a  remedy  for  damages  resulting  from  the  improper 
performance  of  a  contract,  and  later  for  damages  for  non- 
performance of  a  contract.  The  greatest  extension  of  this 
action  came  in  1602  when  in  Slade's  Case,  it  was  decided 
that  where  a  person  was  under  any  legal  obligation  to  pay 


COMMON    LAW    PLEADING  193 

a  sum  of  money,  the  law  would  imply  a  promise  to  pay 
such  money,  and  would  sustain  an  action  of  assumpsit  on 
such  implied  promise.  The  effect  of  this  decision  was  to 
make  assumpsit  a  concurrent  remedy  with  debt  in  all  cases 
where  the  latter  remedy  formerly  lay. 

Assumpsit  is  divided  into  general  assumpsit  and  special 
assumpsit.  Special  assumpsit  is  based  upon  the  special 
facts  of  the  particular  case,  and  the  declaration  must  set 
out  all  the  material  parts  of  the  contract  upon  which  the 
action  is   brought. 

In  general  assumpsit  the  action  is  founded  upon  an 
obligation  raised  by  law  independent  of  express  contract, 
the  declaration  in  such  cases  contains  one  or  more  of  the 
common  counts. 

The  common  counts  are  as  follows  : 

(1)  Indebitatus  assumpsit.  This  count  simply  alleges 
that  the  defendant,  being  indebted  to  the  plaintiff  in  a 
certain  amount,  promised  to  pay  the  same.  The  cause  of 
the  indebtedness  is  generally  alleged  in  a  general  way 
as  being  for  goods  bargained  and  sold;  for  goods  sold  and 
delivered;  for  use  and  occupation;  for  services  rendered; 
for  money  loaned;  for  money  paid  for  the  defendant's 
use;  or  for  money  received  by  the  defendant  for  the  plain- 
tiff's use. 

(2)  Quantum  meruit.  This  is  used  when  services  are 
rendered,  at  the  request  of  the  defendant,  without  a  defi- 
nite agreement  as  to  what  shall  be  paid  for  them,  to  recover 
what  such  services  merited, 

(3)  Quantum  valebant.  This  is  used  when  goods  are 
delivered  to  the  defendant,  at  his  request,  either  express 
or  implied,  but  without  any  agreement  as  to  price,  to  re- 
cover Avhat  such  goods  are  reasonably  worth. 

(4)  Insimul  computasset.  This  alleges  that  the  parties 
had  agreed  between  themselves  upon  a  balance  due,  upon 
which  balance  suit  is  brought. 

Scire  facias  is  an  auxiliary  action,  which  is  brought  on 
the  record  of  some  prior  action  for  the  purpose  of  enforc- 
ing judgments,  recognizances  or  other  obligations  of  record, 
or  to  continue  .suits. 


194  putney's  liAK  j:.\.\.minaii()\   i;i.\ii.\\ 

An  old  ('(jinmoM  law  action  now  entirely  ol)soleto,  was 
that  ol"  annuity. 

Actions  Ex  Delicto. 

Trespass  was  the  original  tort  action  and  for  a  consid- 
erable period  the  fields  of  tresi)ass  and  tort  were  co-exten- 
sive. Near  the  beginning  of  the  thirteenth  century,  how- 
ever, the  action  of  trespass  lost  its  elasticity  and  could  no 
longer  be  extended  to  give  relief  in  new  classes  of  cases. 
A  remedy  for  this  state  of  affairs  was  secured  by  the 
passage  of  the  Statute  of  Westminster  II  (1285), 

By  the  provisions  of  this  statute  it  was  provided  that 
whenever  the  clerks  in  Chancery  (who  then  issued  all  the 
common  law  writs)  had  been  accustomed  to  issue  writs  in 
certain  cases,  they  should  have  authoi-ity  to  frame  new 
forms  of  writs  in  similar  cases  (in  comsimili  casu). 

From  this  statute  came  the  action  of  trespass  on  the 
case.  Trespass  and  trespass  on  the  case  taken  together 
are  broad  enough  to  cover  the  whole  field  of  tort.  Al- 
though there  are  other  actions  ex  delicto  and  although  in 
certain  cases  they  may  furnish  a  more  effective  remedy 
than  eitlier  trespass  or  trespass  on  case,  still  there  is  no 
tort  upon  which  one  of  these  two  forms  of  action  will  not 
lie.  The  distinction  between  trespass  and  trespass  on  the 
case  is  generally  said  to  be  that  trespass  lies  from  all  in- 
juries resulting  from  direct  application  of  force  and  tres- 
pass on  the  case  for  all  injuries  resulting  from  an  indirect 
application  of  force.  This  Avas  the  distinction  as  laid  down 
in  the  famous  ''Squib  Case".  This  distinction  although 
correct  in  the  main  is  not  absolutely  so.  The  true  state- 
ment is  that  trespass  on  the  case  will  lie  for  the  redress 
of  all  torts,  for  which  no  redress  was  given  by  the  action 
of  trespass  at  the  time  of  the  passage  of  the  Statute  of 
Westminster  II.  In  addition  to  cases  involving  the  indirect 
application  of  force,  trespass  on  the  case  is  also  the  proper 
remedy  in  the  cases  of  those  wrongs  where  no  physical 
force  is  involved  at  all,  such  as  deceit,  slander  and  libel, 
malicious  prosecution,  etc.,  and  is  also  the  remedy  in  one 
class  of  cases,  i.   e.,   waste,  even  when  the   application   of 


COMMON    LA\\'    PLEADING  195 

force  is  direct.  By  .statute  iu  Illinois  all  distinction  be- 
tween trespass  and  trespass  on  the  case  has  been  abolished, 
and  both  actions  now  lie  concurrently,  where  either  action 
would  lie  before. 

Trover  grew  out  of  detinue,  in  much  tlie  same  manner 
as  trespass  on  the  case  grew  out  of  trespass,  and  sup- 
planted detinue  for  much  the  same  reasons  that  assumpsit 
supplanted  debt.  Trover  is  in  a  sense  a  specialized  form 
of  trespass  on  the  case. 

"The  most  curious  feature  of  the  action  of  trover  is  the 
fact  that  it  is  encumbered  with  more  tictions  than  any 
other  personal  action.  The  declaration  alleges  a  losing  l)y 
the  plaintiff  and  a  finding  by  the  defendant,  but  neither 
of  tliese  allegations  need  be  proved.  Furthermore,  if  a 
bailment  is  alleged  as  a  means  of  indicating  the  manner  in 
which  the  defendant  acquired  possession,  it  need  not  in 
modern  times  be  proved.  A  refusal  to  surrender  on  de- 
mand is  also  often  alleged  in  the  declaration,  but  this  alle- 
gation is  likewise  immaterial  where  the  taking  is  tortious. 

"The  gist  of  the  action  is  found  in  the  allegation  that 
the  defendant  'converted  the  goods  to  his  own  use.'  But 
oddly  enough,  even  this  allegation  is  also  a  sort  of  fiction; 
for  if  words  mean  anything  a  conversion  to  one's  own  use 
implies  an  appropriation  under  such  circumstances  as  to 
result  in  benefit  to  the  converter.  But  nothing  is  better 
established  than  that  this  is  not  necessary.  Conversion 
in  law  does  not  mean  acquisition  of  property.  It  is  enough 
that  the  owner  or  person  having  the  right  to  possession 
has.  under  conditions  more  or  less  clearly  defined,  been  de- 
prived of  dominion  over  the  goods.  A  withholding  of  pos- 
session under  an  inconsistent  claim  of  title  is  sufficient." 
(Street's  Foundations  of  Legal  Liability,  Vol.  Ill,  pp.  159- 
160.) 

Replevin  is  an  action  foi-  the  recovery  of  specific  articles 
of  personal  property.  Its  advantages  over  trover  are  that 
possession  of  the  property  can  be  obtained  (by  giving 
bonds)  pending  trial  of  the  suit,  and  that  the  defendant 
does  not  have  the   alternative  of  paying  damages  instead 


196  putney's    bar    examination    KEVIEW 

of  returning  the  property  The  details  of  this  action  of 
replevin  are  largely  regulated  by  statute  in  the  different 
states. 

The  Pleadings. 

The  pleadings  in  a  case  are  the  allegations  made,  in  turn, 
by  the  parties  to  the  suit,  for  the  purpose  of  presenting 
to  the  court  the  point  at  issue  between  the  parties.  The 
object  of  all  pleadings  is  to  reach  the  point,  where  there 
is  some  allegation,  or  allegations,  affirmed  on  the  one  side, 
and  denied  on  the  other. 

The  different  pleadings  in  their  order  in  a  common  law 
action  are  as  follows: 

1.  The  Declaration. 

2.  The  Plea. 

3.  The  Replication. 

4.  The  Rejoinder. 

5.  The  Surrejoinder. 

6.  The  Rebutter. 

7.  The  Surrebutter. 

The  first,  third,  fifth  and  seventh  of  these  pleadings  are 
by  the  plaintiff,  and  the  second,  fourth  and  sixth  by  the 
defendant.  After  this  point  (which  is  very  seldom  reached) 
the  pleadings  have  no  special  names. 

A  demurrer  is  not  a  pleading,  but  instead  a  request  to  be 
released  from  pleading.  Pleadings  raise  questions  of  fact 
while  demurrers  raise  questions  of  law. 

A  declaration  contains  the  following  parts: 

(1)  Caption, 

(2)  the  title, 

(3)  the  inducement, 

(4)  the  charge. 

(5)  the  injury  and  ad  damnum  clause, 

(6)  production  of  suit,  and 

(7)  the    signature,    either   by   the   plaintiff   or    his 

counsel. 
Pleas    are    either   peremptory   or   dilatory.     Peremptory 
picas  are  those  which  go  to  the  merits  of  the  case.     Dila- 
tory pleas  are  those  which  seek  to  delay  the  action  or  to 


COMMON    LAW    PLEADING  197 

defeat  it  on  some  ground  which  does  not  go  to  the  merits 
of  the  ease. 

Dilatory  pleas  are  classified  as  follows : 

1.  To  the  jurisdiction  of  the  court. 

2.  To  the  disability  of  the  person. 

1.  of  plaintiff. 

2.  of  defendant. 

3.  To  the  count  or  declaration.     (Obsolete.) 

4.  To  the  writ. 

1.  To  the  form  of  the  writ. 

a.  For  matter  apparent  on  the  face  of  it. 

b.  For  matter  dehors  the  writ. 

2.  To  the  action  of  the  writ. 

1.  By  way  of  traverse. 

2.  Or  in  confession  and  avoidance. 

A  peremptory  plea  must  bo  either  by  way  of  traverse 
or  by  way  of  confession  and  avoidance. 

A  plea  by  way  of  traverse  denies  the  allegations  con- 
tained in  the  plaintiff's  declaration,  while  a  plea  by  way 
of  confession  and  avoidance  admits  such  allegations  and 
then  proceeds  to  state  new  matter  as  a  defence  thereto. 
A  plea  by  way  of  traverse  concludes  with  the  words  ''And 
of  this  he  puts  himself  upon  the  country."  In  such  a  case 
issue  is  joined  by  the  plaintiff  filing  a  "similiter,"  gener- 
ally in  the  following  words:  "And  the  said  John  Doe  as 
to  the  plea  of  the  said  Richard  Doe  above  pleaded,  and 
whereof  he  has  put  himself  upon  the  country,  does  the 
same."  (What  has  been  said  about  the  distinction  between 
pleas  by  way  of  traverse,  and  by  way  of  confession  and 
avoidance,  applies  equally  to  the  case  of  all  later  pleadings. 
The  method  of  joinder  in  issue  is  the  same  whether  such 
joinder  takes  place  upon  the  plea,  or  upon  the  replication, 
or  upon  the  surrebutter.)  A  traverse  may  be  either  gen- 
eral or  special.  A  general  traverse,  also  known  as  the  gen- 
eral issue,  is  a  general  denial,  by  single  technical  phrase, 
of  the  plaintiff's  whole  cause  of  action  or  the  greater  part 


198  putney's  hak  examination  ueaiew 

thereof.  The  scope  of  the  general  issue  is  broader  in  some 
forms  of  actions  than  in  others.  The  general  issue  in  th*; 
various  foi-ins  of  personal  actions  is  as  follows: 

Debt  on  a  simple  contract.     Nil  debet.     Under  this  any- 
thing can  be  introduced,  whieh  proves  that  the  defendant 
does  not  owe   the   debt.     Under  this  plea,   matters   whieii 
are   in   realit-y   by   way    of   confession   and   avoidance   may 
be  introduced  in  the  form  of  a  traverse. 
Debt  on  record.     Nul  tiel  record. 
Debt  on  specialty.    Non  est  factum. 
Detinue.     Non  detinet. 

Assumpsit.  Non  assumpsit.  This  plea  is  much  ])roader 
in  its  scope  in  the  case  of  general  assumpsit  than  in  the 
case  of  special  assumpsit.  In  the  latter  case  all  that  can 
be  proved  under  this  plea  is  that  the  promise  was  not 
made. 

Trespass.     Not  gnilty. 
Trespass  on  the  case.     Not  guilty. 

Trover.  Not  guilty.  Under  this  plea  in  this  action,  any 
defence  can  be  set  up  with  the  single  exception  of  that  of 
the  statute  of  limitations. 

A  special  traverse  consists  of  some  affirmative  matler 
inconsistent  with  the  adversary's  former  ])l('a(ling.  and  a 
negative  contradiction  to  it. 

There  is  one  special  kind  of  traverse  which  can  only  be 
used  by  the  plaintiff  in  his  replication;  this  is  the  replica- 
tion de  injuria.  This  is  properly  used  when  the  defendant 
has  justified  his  actions  in  his  plea,  and  the  plaintiff  in 
the  replication  denies  the  alleged  justification,  alleging  in- 
stead that  the  injury  was  the  defendant's  own  wrong. 

Demurrers. 

A  demurrer  may  be  either  general  or  special.  A  special 
demurrer  points  out  the  reasons  why  the  opponent's  plead- 
ing failed  to  show  a  good  ground  of  action,  or  of  defence. 
A  general  demurrer  merely  alleges  in  general  terms  that 
the  opponent's  pleading  does  not  thus  allege  a  good  ground 
of  action  or  of  defence. 


COMMON'    LAW    PLEADING  199 

Matters  of  substauee  cau  be  raised  by  either  a  general 
or  a  special  demurrer,  but  matters  of  form  can  only  be 
raised  by  a  special  demurrer. 

Upon  a  demurrer  the  court  will  consider  the  Avhole  record 
and  give  judgment  to  the  party  who  upon  the  whole  is 
entitled  to  it.  Tliis  rule  does  not  apply,  however,  where 
the  demurrer  is  by  the  plaintiff  to  a  plea  in  aliatement ; 
where  there  has  been  a  discontinuance ;  or  where  the  right 
on  the  whole  record  appears  to  be  with  the  plaintiff',  but 
he  has  put  his  action  on  some  other  ground.  This  ques- 
tion of  the  rights  of  the  parties  on  the  Avhole  record  will 
be  considered  in  regard  to  substance,  not  form. 

Rules  of  Pleading. 
Rules  Tending-  Solely  to  the  Production  of  an  Issue. 

(1)  After  the  deelaration,  the  parties  at  each  stage  must 
demur,  or  plead  either  by  way  of  traverse  or  of  confession 
and  avoidance. 

(2)  Upon  a  traverse,  issue  must  be  tendered. 

(3)  When  issue  is  tendered,  it  must  be  accepted. 

Rules  Tending  to  Produce  a  Material  Issue. 

(1)  All  pleadings  must  contain  matter  pertinent  and 
material.     Two  minor  rules  need  to  be  noticed  : 

(a)  A  traverse  must  not  be  taken  on  an  immaterial 
point. 

(b)  A  traverse  must  not  be  too  large,  or  too  narrow. 

Rules  Tending  to  Produce  a  Single  Issue. 

i' 1  j     Pleadings  must  not  l)e  double. 

The  effect  of  this  rule  is  qualified  by  allowing  the  plain- 
tiff' to  unite  several  counts  in  the  same  declaration.  Con- 
set  [iiently  the  defendant  can  off'er  different  pleas,  according 
to  the  nature  of  the  different  counts. 

(2)  It  is  not  allowable  to  plead  and  demur  to  the  same 
matter. 

Rules  Tending  to  Produce  a  Certain  Issue. 
(1)     The  pleadings  must  have  certainty  of  place,   i.   e., 
the  venue  of  the  aetinn.  namelv,  the  eountv  in  wliieh  it  is 


200  putney's  bar  examination  review 

to  be  tried  must  be  stated  in  the  declaration.  Actions,  with 
regard  to  venue,  are  divided  into  two  classes :  local  actions, 
or  those  the  cause  of  which  could  have  arisen  in  some  par- 
ticular county  only,  as  any  of  the  real  actions,  and  transi- 
tory actions,  or  those  the  cause  of  which  might  have 
arisen  elsewhere.  In  transitory  actions,  the  venue  may  be 
laid  in  whatever  county  the  plaintiff  chooses. 

(2)  The  pleadings  must  have  certainty  of  time.  In  per- 
sonal actions,  the  day,  month  and  year  when  each  travers- 
able fact  occurred  must  be  alleged.  As  a  rule,  the  time  is 
not  regarded  as  being  material  to  the  issue,  so  that  the 
pleader  is  not  obliged  to  prove  the  time  as  alleged. 

(3)  The  pleadings  must  specify  quality,  quantity,  and 
value. 

(4)  The  pleadings  must  specify  the  names  of  parties. 

(5)  The  pleadings  must  show  title  in  the  party  bringing 
suit. 

(6)  The  pleadings  must  show  authority;  i.  e.,  when  a 
party  justifies  under  a  writ,  warrant,  or  precept,  or  any 
other  authority  whatever,  he  must  set  it  forth  particularly 
in  his  pleadings. 

(7)  In  general,  whatever  is  alleged  in  pleading  must 
be  alleged  with  certainty. 

Rules  Tending  to  Prevent  Obscurity  and  Confusion. 

(1)  Pleadings  must  not  be  insensible,  or  repugnant; 
i,  e.,  they  must  be  intelligible,  and  consistent  with  them- 
selves. 

(2)  Pleadings  must  not  be  ambiguous,  or  doubtful  in 
meaning,  and  when  two  constructions  present  themselves, 
that  one  shall  be  adopted  which  is  most  unfavorable  to 
the  party  pleadinr*:. 

(3)  Pleadings  must  not  be  argumentative;  i.  e.,  they 
must  state  facts  in  an  absolute  form,  and  not  leave  them 
to  be  collected  by  inference  and  argument. 

(4)  Pleadings  must  not  be  hypothetical,  or  in  the  alter- 
native. 

(5)  Pleadings  must  not  be  by  way  of  recital,  but  must 
be  positive  in  form. 


COMMON    LAW   PLEADING  201 

(6)  Things  are  to  be  pleaded  according  to  their  legal 
effect  and  operation. 

(7)  Pleadings  should  have  their  proper  formal  com- 
mencements and  conclusions. 

(8)  A  pleading  which  is  bad  in  part  is  bad  altogether. 

Rules  Tending  to  Prevent  Prolixity  and  Delay. 

(1)  There  must  be  no  departure  in  the  pleadings.  A 
departure  occurs  when,  in  any  pleading,  the  party  deserts 
the  ground  which  he  took  in  the  last  antecedent  pleading, 
and  resorts  to  another. 

(2)  When  a  plea  amounts  to  the  general  issue,  it  should 
be  so  pleaded. 

(3)  Surplusage  is  to  be  avoided.  By  surplusage  is 
meant  unnecessary  matter  of  whatever  description. 

Certain  Miscellaneous  Rules. 

(1)  The  declaration  must   be  conformable  to  the  writ. 

(2)  The  declaration  should  have  its  proper  commence- 
ment, and  should  in  conclusion,  lay  damages. 

(3)  Pleas  must  be  pleaded  in  due  order. 

(4)  Pleas  in  abatement  must  give  the  plaintiff  a  better 
writ,  or  declaration ;  i.  e.,  the  plea  must  correct  the  mis- 
take of  the  plaintiff  so  as  to  enable  him  to  avoid  the  same 
mistake  in  framing  a  new  writ,  or  declaration. 

(5)  Dilatory  pleas  must  be  pleaded  at  a  preliminary 
stage  in  the  suit. 

(6)  In  all  pleadings  where  a  deed  is  alleged  under  which 
the  party  claims  or  justifies,  profert  of  such  deed  must  be 
made. 

(7)  All  pleadings  ought  to  be  true. 

Trial. 

The  various  steps  in  a  common  law  action  are  as  follows : 

(1)  The  process. 

(2)  The  appearance  of  the  defendant. 

(3)  The  trial. 


202  putney's  bar  examination  review 

(4)  The  verdict. 

(5)  The  judgment. 

The  process  against  the  defendant  may  be  either  by  sum- 
mons, capias  ad  respondendum,  or  by  attachment.  The 
capias  ad  respondendum  involves  the  arrest  of  the  de- 
fendant for  the  purpose  of  bringing  him  before  the  court. 

The  beginning  of  a  suit  by  attachment  is  only  permitted 
in  special  cases,  which  are  regulated  by  statute.  When  a 
non-resident  of  a  state  has  property  within  that  state,  he 
may  be  sued  in  such  state  and  jurisdiction  obtained  by  at- 
taching such  property.  A  judgment  obtained  under  such 
circumstances  will  only  be  binding  as  against  the  property 
attached  and  can  never  be  a  judgment  in  personam. 

The  appearance  of  the  defendant  may  be  either  volun- 
tary or  involuntary;  and,  also,  either  general  or  special. 
A  general  appearance  is  one  made  for  the  purpose  of  fight- 
ing the  plaintiff's  case;  a  special  appearance  is  one  made 
for  the  purpose  of  objecting  to  the  jurisdiction  of  the  court. 
If  the  defendant  fails  to  appear  at  all  he  will  be  defaulted. 

After  the  appearance  of  the  defendant,  the  proper  plead- 
ings are  filed  and  the  case  is  then  ready  for  trial.  Tn  gen- 
eral questions  of  law  are  determined  by  the  court  and 
questions  of  fact  by  the  jury. 

Each  side  is  allowed  to  examine  the  prospective  jurors 
for  the  purpose  of  securing  an  unprejudiced  jury.  Chal- 
lenges may  be  either  to  the  array  or  the  polls.  Challenges 
to  the  array  are  directed  against  the  whole  list  of  jurors 
on  account  of  the  manner  in  which  they  have  been  se- 
lected. 

Challenges  to  the  polls,  or  to  individual  jurors  may  be 
either  peremptory  or  for  cause.  Each  side  is  allowed  a 
certain  number  of  peremptory  challenges,  which  number 
is  determined  by  statute.  Challenges  for  cause  may  be 
allowed  or  disallowed  at  the  discretion  of  the  judges.  No 
complete  list  of  causes  which  will  render  a  juror  properly 
open  to  challenge  has  ever  been  made,  but  the  cause  must 
be  one  which  would  probably  render  the  juror  prejudiced 
towards  one  side  or  the  other. 


COMMON    LAW    I'LEADINU  203 

The  verdict  is  the  decision  of  the  jurors  upon  the  issues 
presented  to  them.  It  is  usually  in  general  terms  for  "the 
plaintiff"  or  "for  the  defendant,"  and  if  for  the  former 
the  amount  of  damages  must  be  stated.  When  there  are 
separate  and  distinct  issues  submitted  to  the  jury  there 
must  be  a  finding  upon  each. 

Proceedings  After  Verdict. 

The  following  proceedings  may  be  taken  by  the  unsuc- 
cessful party  after  a  verdict: 

(1)  Motion  for  a  new  trial.  The  granting  of  this  mo- 
tion depends  mainly  upon  the  discretion  of  the  judge. 

(2)  Motion  in  arrest  of  judgment.  This  must  be  based 
on  error  apparent  upon  the  face  of  the  record. 

(3)  Motion  for  judgment  non  obstante  veredicto.  This 
motion  may  be  made  by  the  plaintiff  upon  the  ground 
that  some  pleading  by  the  defendant,  by  way  of  confes- 
sion and  avoidance,  was  bad  in  substance,  and  could  have 
been  demurred  to. 

(4)  Motion  for  a  repleader.  This  motion  may  be  made 
when  issue  was  joined  upon  an  immaterial  point. 

(5)  Taking  up  the  case  to  a  higher  court  by  means  of 
a  writ  of  error.  A  writ  of  error  is  issued  from  a  court  of 
appellate  jurisdiction  to  the  judge,  or  judges,  of  a  court 
of  record,  directing  them  to  send  up  to  such  appellate 
court,  the  record  of  same  case  which  has  been  tried  by  the 
loAver  court. 

Only  questions  of  law  can  be  raised  by  a  writ  of  error, 
and  this  writ  will  only  lie  for  substantial  errors,  never  for 
mere  formal  errors. 

A  writ  of  error  is  based  upon  a  bill  of  exceptions.  A  bill 
of  exceptions  must  set  out  the  alleged  errors  committed  by 
the  judge  in  the  course  of  the  proceedings  in  the  lower 
court,  and  the  objections  taken  to  them.  A  bill  of  excep- 
tions must  be  authenticated  by  the  trial  judge.  Excep- 
tions must  generally  be  taken  at  the  time  that  any  alleged 
error  was  committed. 

Bills  of  exceptions  were  created  by  the  31st  Chapter  of 
the  Statute  of  AVestminster  IT. 


CHAPTER  XXII. 
EQUITY  PLEADING. 

There  are  three  classes  of  parties  to  a  suit  in  equity, 
namely:   indispensable,   necessary   and  formal   parties. 

"Formal  parties  are  those  who  have  no  interest  in  the 
controversy  between  the  immediate  litigants,  but  have  an 
interest  in  the  subject-matter,  which  may  be  conveniently 
settled  in  the  suit  and  thereby  prevent  further  litigation. 
They  may  be  parties  or  not  at  the  option  of  the  complainant. 
Necessary  parties  are  those  who  have  an  interest  in  the 
controversy,  but  whose  interests  are  separable  from  those 
of  the  parties  before  the  court,  and  will  not  be  directly  af- 
fected by  a  decree  which  does  complete  and  full  justice 
between  them.  Such  persons  may  be  made  parties,  if  prac- 
ticable, in  obedience  to  the  general  rule  which  requires  all 
persons  to  be  made  parties  who  are  interested  in  the  con- 
troversy, in  order  that  there  may  be  an  end  of  litigation. 
Indispensable  parties  are  those  who  not  only  have  an  in- 
terest in  the  subject-matter  of  the  controversy,  but  an 
interest  of  such  a  nature  that  a  final  decree  cannot  be 
made  without  either  affecting  their  interests,  or  leaving  the 
controversy  in  such  a  condition  that  its  final  determina- 
tion may  be  wholly  inconsistent  with  equity  and  good  con- 
science,"    (Fletcher  on  Equity  Pleading,  Section  40,) 

The  following  have  been  held  not  to  be  necessary  parties : 

1.  Those  whose  interest  is  very  small, 

2.  Those  whose  interest  has  been  created  to  deprive  the 
court  of  jurisdiction, 

3.  Those  who  consent  to  the  decree  sought. 

4.  Those  against  whom  the  complainants  waive  their 
rights. 

5.  Those  who  are  legally  represented. 

In  equity,  if  one  of  the  parties  who  would  be  a  proper 
party  complainant,  refuses  to  join  as  a  complainant,  he 
may  be  made  a  party  defendant, 

204 


EQUITY    PLEADING  205 

Order  of  Proceedings. 

The  order  of  proceedings  in  a  suit  in  equity  is  as  fol- 
lows : 

Process  for  appearance. 

Appearance. 

Proceedings  on  default. 

Interlocutory  proceedings. 

Taking  of  evidence. 

Reference  to  master. 

The  hearing. 

The  decree. 

Correction  or  reversal  of  decrees. 

Enforcements  of  decrees. 

Appearance  in  a  suit  in  equity  is  secured  by  a  subpoena. 
If  the  defendant  fails  to  appear  the  bill  may  be  taken  pro 
confesso.  The  taking  of  evidence  in  a  suit  is  generally 
referred  to  a  Master  in  Chancery,  who  makes  a  report  to 
the  judges;  although  the  evidence  may  be  presented  in 
the  form  of  affidavits,  or  may  (at  the  discretion  of  the 
judges)  be  introduced  for  the  first  time  at  the  hearing, 
as  is  generally  the  case  in  the  trial  of  suits  for  divorce. 

A  suit  in  equity  is  taken  to  an  appellate  court  by  means 
of  an  appeal  instead  of  by  a  writ  of  error  (as  is  the  case 
in  common  law  actions). 

The  Pleadings. 

The  first  pleading  by  the  complainant  is  the  bill  of  com- 
plaint; the  defendant  may  then  either  disclaim,  answer, 
plead  or  demur;  the  replication  (which  in  equity  is  merely 
a  joinder  in  issue  by  the  plaintiff)  closes  the  pleading. 
The  place  of  the  later  pleadings  at  common  law  is  sup- 
plied in  equity  by  permitting  amendments  to  the  bill  and 
answer. 

Classification  of  Bills. 

Bills  in  equity  are  primarily  divided  into  original  bills 
and  bills  not   original. 

Original  bills  are  in  turn  subdivided  into  bills  praying 
relief  and  bills  not  praying  relief. 


2UG  putney's  uak  exaaunatiox  ueview 

Original  bills  praying  lor  relief  are  divided  into  three 
classes : 

Bills  praying  the  decree  or  order  of  the  court  touching 
some  right  claimed  by  the  party  exhibiting  the  bill,  in  op- 
position to  some  right,  real  (.r  supposed,  claimed  by  the 
])arty  against  whom  the  l)ill  is  exhibited,  or  tou<'hing  some 
wrong  done  in  violation  of  the  complainant's  right; 

Bills  of  inter])leader ; 

Bills  of  certiorari. 

Original  bills  not  praying  relief  aic  .is  follows: 
Bills  to  perpetuate    testimony. 
Bills  to  examine  witnesses  de  lieiie  esse. 
Bills  of  discovery. 

Bills  not  original  are  divided  into: 

Interlocutory   bills,   and 

Bills  in  the  nature  of  original  bills. 

Interlocutory  bills  inehide : 

Supplemental  bills  and  original  bills  in  the  nature  of  siij)- 
])lemental  bills. 

Bills  of  revivor  and  bills  in  tlie  nature  of  bills  of  re- 
vivor. 

Bills  of  revivor  and  supplement. 

Bills  in  the  nature  of  original  bills  are: 

Cross  bills. 

Bills  of  review,  and  bills  in  the  nature  of  bills  of  review. 

Bills  to  impeach  a  decree  on  the  ground  of  fraud. 

Bills  to  suspend  or  avoid  the  operation  of  decrees. 

Bills  to  carry  decrees  into  execution. 

Original  Bills. 

The  first  class  of  original  bills  praying  relief  may  be 
used  for  a  great  variety  of  purposes,  among  which  are  the 
following:  For  specific  performance,  to  reform  or  cancel 
written  instruments,  to   set   aside  fraudulent   conveyances. 


EQUITY    PLEADING  207 

to  quiet  title,  to  foreclose  mortgages,  to  redeem,  for  divorce 
or  separate  maintenance,  and  for  other  purposes. 

A  bill  of  interpleader  may  be  brought  by  a  person  who 
is  in  possession  of  property,  in  which  he  claims  no  title, 
and  which  is  claimed  by  two  or  more  other  persons,  pro- 
vided that  neither  of  the  titles  to  the  property  is  derived 
fi'om  himself,  and  all  the  diverse  interests  were  derived 
from  the  same  original  source. 

A  bill  of  certiorari  is  for  the  purpose  of  having  the  rec- 
ord of  a  case  certified  up  from  the  trial  court  to  an  appellate 
court.  This  bill  is  seldom  used  in  an  equity  suit  in  this 
country. 

A  bill  to  perpetuate  testimony  is  for  th(^  purpose  of  se- 
curing and  perpetuating  the  testimony  of  a  witness,  who 
is  liable  to  die  or  remove  from  the  jurisdiction  of  the  court, 
on  some  question  Avhich  is  expected  to  be  the  subject  of  a 
future  suit.  This  form  of  bill  can  only  be  brought  by  a 
l)erson  who  expects  to  be  the  defendant  in  such  threatened 
suit.  Bills  to  examine  witnesses  de  l^ene  esse,  are  for  the 
purpose  of  o])taining  evidence  for  some  party  to  a  pending- 
suit.  Bills  for  discovery  are  brought  for  the  purpose  of  ob- 
taining testimony  from  the  opposing  party  in  a  common  law 
ease.  The  two  last  species  of  bills  are  practically  obsolete 
as  their  purpose  can  be  better  accomplished  by  means  of 
depositions  or  ijitrrrognto'-ir-s. 

Interlocutory  Bills. 

"When  it  is  desired  to  allege  new  matter  in  the  bill  of  com- 
plaint in  any  equity  suit,  this  can  be  done  by  means  of  an 
amendment  to  the  bill  provided  such  new  matter  consists 
of  matters  which  have  happened  prior  to  the  commencement 
of  the  suit.  If,  however,  it  is  desired  to  amend  the  bill  of 
complaint  by  bringing  in  matters  which  occurred  subse- 
quent to  the  filing  of  the  bill,  this  must  be  done  by  means 
of  a  supplemental  bill.  If  it  is  desired  to  bring  in  new  par- 
ties defendant  to  the  suit,  a  bill  in  the  nature  of  a  sup- 
plemental bill  must  be  used. 

A  bill  of  revivor  is  one  brought  to  revive  a  bill  which 


208  putney's  bar  examination  review 

has  abated  upon  the  death  of  one  of  the  parties,  or  (in  some 
states)  upon  the  marriage  of  a  female  complainant,  by  one 
whose  title  as  his  representative  is  clear  (i.  e.,  by  the  heir, 
executor  or  administrator).  When  the  right  of  a  party  does 
not  certainly  appear  from  the  mere  proof  of  the  relation  in 
which  such  party  stands  to  the  deceased  party  to  the  suit 
(e.  g.,  when  the  bill  to  revive  is  brought  by  a  legatee)  a 
bill  in  the  nature  of  a  bill  of  revivor  must  be  brought. 

A  bill  of  supplement  and  revivor  performs  the  office 
both  of  a  supplemental  bill  and  of  a  bill  of  revivor. 

Bills  in  the  Nature  of  Original  Bills. 

A  cross  bill  is  one  brought  by  the  defendant  in  a  suit 
against  the  original  complainant,  when  such  defendant  (i. 
e.,  in  the  original  suit)  seeks  affirmative  relief  against  such 
original  complainant. 

A  bill  of  review  is  a  bill  brought  to  obtain  a  modifica- 
tion or  reversal  of  a  decree  made  upon  some  former  bill, 
after  such  decree  has  been  enrolled.  If  the  decree  has 
not  yet  been  regularly  enrolled,  a  bill  in  the  nature  of  a 
bill  of  review  is  used.  Either  of  these  bills  may  be  based 
either  upon  the  ground  of  newly  discovered  evidence,  or 
upon  error  appearing  on  the  face  of  the  record.  In  the 
latter  case  these  bills  may  be  brought  as  a  matter  of  right, 
while  in  the  former  ease,  the  consent  of  the  court  is  re- 
quired before  the  bill  can  be  filed. 

Parts  of  a  Bill  in  Equity. 
There  are  nine  recognized  parts  to  a  bill  in  equity.     Of 
these  nine  parts,  the  first  three  and  the  last  two  are  nec- 
essary,  while   any   or  all   of  the   remaining  four  may  be 
omitted.     The  nine  parts  are  as  follows: 

(1)  The  address,  which  consists  of  the  technical  de- 
scription of  the  court  in  which  the  complainant  brings  his 
action. 

(2)  The  introduction.  This  contains  the  names  and 
residences  of  the  complainants  and  of  the  character  in 
which  they  sue.     In  the  Federal   courts  the  introduction 


EQUITY   PLEADING  209 

also   contains   the   names,   residences,    citizenship   and   de- 
scription of  the  defendant. 

(3)  The  premises  or  stating  part.  This  contains  the 
names  and  description  of  the  defendants  (except  in  the 
Federal  courts)  and  a  statement  of  the  complainant's  cause 
of  action.  Much  less  technicality  is  required  in  the  stating 
of  such  cause  of  action  than  is  required  in  the  stating  of 
a  cause  of  action  in  a  common  law  case. 

(4)  The  confederating  part.  This  alleges  a  confederat- 
ing between  the  defendant  and  certain  unknown  parties. 
It  was  formerly  considered  that  this  part  was  necessary 
in  order  to  enable  the  complainant  to  bring  in  new  parties 
as  defendants,  at  a  later  stage  of  the  proceedings  in  the 
suit.  This  view  has  now  been  abandoned  and  this  part  of 
the  bill  is  without  any  practical  value  whatever. 

(5)  The  charging  part.  This  is  used  for  the  purpose  of 
anticipating  a  defense  which  the  defendant  is  expected  to 
set  up,  and  then  answering  it.  Its  main  purpose  is  to 
enable  the  complainant  to  file  interrogations  relative  to 
his  answer  to  the  defendant's  anticipated  defense. 

(6)  The  jurisdiction  clause.  This  part  is  almost  in- 
variably inserted  but  is  of  no  possible  value.  A  court  of 
equity  has  jurisdiction  of  a  cause  (if  it  has  jurisdiction 
at  all)  on  account  of  the  facts  set  forth  in  the  premises  of 
the  bill,  not  on  account  of  a  mere  allegation  by  the  com- 
plainant that  such  jurisdiction  exists. 

(7)  The  interrogating  part.  This  is  practically  a  bill 
for  discovery  inserted  in  a  bill  whose  main  purpose  is  to 
seek  some  relief  from  the  equity  court.  The  interrogations 
must  relate  to  the  complainant's  cause  of  action  and  not  to 
the  defendant's  defense. 

(8)  The  prayer  for  relief.  In  this  part,  the  complain- 
ant asks  for  the  special  form  of  equitable  relief  which  he 
seeks,  and  generally  concludes  with  a  prayer  for  general 
relief,  *'and  for  such  other  relief  as  to  your  Honors  shall 
seem  meet,  according  to  equity  and  good  conscience." 

(9)  The  prayer  for  process.  Here  the  complainant  asks 
for  a  summons  to  be  issued  directing  the  defendant    (or 


210  putney's  I5ai:  examination  ukvikw 

defendants)  to  appear  l)erore  tlie  court.  11'  ;m  injunction 
is  sought  it  should  be  prayed  for  l)(»11i  in  Ih.-  i.iaycr  Tor 
relief  and  in  the  i)raycr  for  process. 

The  Disclaimer. 

The  disclaimer  may  be  used  by  the  defendant  in  reply 
to  a  bill  of  complaint  which  merely  concerns  the  defend- 
ant's interwst  in  certain  specific  property,  but  not  in  reply 
to  a  l)ill  which  seeks  some  decree  in  personam  against  the 
defendant.  By  a  disclaimer  the  defendant  disclaims  and  re- 
nounces all  interest  in  the  property  which  is  the  subject- 
matter  of  the  suit. 

The  Plea. 

"Where  an  objection  to  the  bill  is  not  apparent  on  the 
bill  itself,  the  defendant,  if  he  wishes  to  take  advantage 
of  it,  must  show  to  the  court  the  matter  which  creates 
the  objection,  by  answer  or  plea.  A  plea  is  a  special  an- 
swer showing  or  relying  upon  one  or  more  things  as  a  cause 
why  the  suit  should  be  either  dismissed,  delayed  or  barred. 
It  has  been  said  to  differ  from  an  answer  in  the  common 
form,  as  it  demands  the  judgment  of  the  court,  in  the  first 
instance,  whether  the  special  matter  urged  for  it  does  not 
debar  the  complainant  from  his  title  to  that  answer  which 
the  bill  re(iuires.  A  plea  which  sets  forth  nothing  except 
what  appears  on  the  face  of  the  bill  is  bad,  and  must  be 
overruled,  although  the  objection,  if  raised  by  demurrer, 
would  have  been  valid,  as  the  proper  office  of  a  plea  is 
to  bring  forth  fresh  matter  not  apparent  in  the  bill.  Every 
defense  which  may  be  a  full  answer  to  the  merits  of  the 
bill  is  not,  of  course,  to  be  considered  as  entitled  to  be 
brought  forward  by  way  of  plea.  Where  a  defense  con- 
sists in  a  variety  of  circumstances,  there  is  no  use  in  a 
plea.  The  examination  must  still  be  at  large,  and  the  ef- 
fect of  allowing  such  a  plea  will  be  that  the  court  will  give 
its  judgment  upon  the  circumstances  of  the  case  before 
they  are  made  out  by  proof.  The  true  end  of  the  plea  is 
to  save  the  parties  the  expense  of  an  examination  of  the 
witnesses  at  large.     The  defense  proper  for  a  plea  is  such 


EQUITY    PLEADING  211 

as  reduces  the  cause,  or  some  part  of  it,  to  a  single  point, 
or  to  the  point  to  which  the  plea  applies.  Ilence,  a  plea, 
in  order  to  be  good,  whether  it  be  affirmative  or  negative, 
must  be  either  an  allegation  or  denial  of  some  leading  fact, 
or  of  matters  which,  taken  collectively,  make  out  some 
general  fact,  which  is  a  complete  defense.  But  although 
the  defense  offered  by  way  of  plea  would  consist  of  a  great 
variety  of  circumstances,  yet,  if  they  all  tend  to  a  single 
point,  the  plea  may  be  good."  (Fletcher  on  Equity  Plead- 
ing, §  235.) 

Pleas  may  be  either  in  abatement  or  in  bar.  The  de- 
fenses most  often  set  uj)  by  a  plea  in  bar  are  such  defenses 
as  payment,  the  statute  of  limitations,  the  statute  of  frauds, 
etc. 

Pleas  are  also  divided  into  pure  pleas,  negative  pleas, 
and  anomalous  pleas.  Pure  pleas  set  up  affirmative  mat- 
ter and  are  in  tlie  nature  of  pleadings  by  way  of  confes- 
sion and  avoidanee.  Negative  pleas  deny  some  allegation 
in  the  complainant's  bill  of  complaint  and  are  in  the  na- 
ture of  pleadings  by  way  of  traverse.  Anomalous  pleas  con 
tain  ])oth  affirmative  and  negative  matter  and  are  of  two 
kinds:  (1)  Where  the  defendant  sets  up  a  defense  which 
the  complainant  has  anticipated  in  the  charging  part  of 
his  bill,  and  then  denies  the  complainant's  denial  of  such 
defense;  and  (2)  where  the  defendant  alleges  matter  in- 
consistent with  the  complainant's  bill  (though  not  a  direct 
denial  of  it)  and  then  denies  such  portion  of  the  com- 
plainant's bill  as  is  inconsistent  with  such  plea. 

Pleas  in  equity  are  not  of  very  frequent  use  at  the  present 
time,  as  any  defense  whi(;h  can  be  made  by  a  plea  can  al- 
ways be  made  by  an  answer,  and  generally  more  advan- 
tageously. 

The  chief  purpose  for  which  a  plea  is  used  is  to  save 
time  or  expense,  or  to  avoid  the  necessity  of  answering  in- 
terrogatories. If,  however,  any  of  the  interrogations  in 
the  bill  of  complaint  relate  to  the  matters  put  in  issue  by 
the  plea,  the  plea  must  be  supported  by  an  answer  to  such 
interrogatories.     A  defendant  may  plead  to  part  of  a  bill, 


212  putney's    liAK   EXAMINATION    REVIEW 

and  answer  or  demur  to  the  balance  of  it.  In  cases  where 
there  are  any  inconsistencies  between  them,  the  plea  will 
be  overruled  by  the  answer. 

For  the  determination  of  the  issue  raised  by  the  plea, 
such  plea  admits  the  truth  of  all  allegations  in  the  bill  of 
complaint  not  put  in  issue  by  the  plea. 

A  decision  in  favor  of  the  defendant  upon  a  plea  is  a 
final  decision  in  favor  of  the  defendant,  with  relation  to 
that  part  of  the  bill  which  is  covered  by  the  plea.  If  a 
plea  is  overruled  the  defendant  is  generally  given  leave  to 
answer. 

The  Answer. 

The  answer  in  equity  must  take  up  all  the  allegations  in 
the  complainant's  bill  and  admit  or  deny  each  in  turn. 
Matters  in  defense,  by  way  of  confession  and  avoidance, 
may  also  be  set  up  in  an  answer.  An  answer  may  raise 
the  legal  sufficiency  of  the  complainant's  bill  as  well  as 
questions  of  fact.  A  sworn  answer  is  evidence  for  both 
parties  and  an  answer  must  be  sworn  to  unless  an  answer 
under  oath  is  expressly  waived  in  the  bill  of  complaint. 

An  answer  cannot  be  demurred  to,  but  the  same  result 
is  reached  by  taking  exceptions  to  it. 

The  Demurrer. 

In  equity  a  demurrer  can  only  be  to  the  bill  of  complaint. 
A  demurrer  may  be  to  the  whole  bill  or  to  a  part  of  the 
bill  only.  A  demurrer  may  also  be  either  general  or  spe- 
cial. A  special  demurrer  specifies  the  grounds  of  objec- 
tion to  the  bill;  a  general  demurrer  alleges  the  bill  to  be 
without  equity.  A  demurrer  may  be  both  general  and  spe- 
cial. Objections  to  the  form  of  the  bill  can  only  be  taken 
by  special  demurrer. 

A  speaking  demurrer  sets  out  matters  not  appearing  upon 
the  face  of  the  bill,  and  is  bad.  When  there  is  a  special 
demurrer  to  the  whole  bill,  and  the  particular  grounds  of 
objection  are  overruled  the  defendant  may  be  permitted 
to  allege  other  grounds  of  objection,  orally,  at  the  trial. 
This  is  called  a  demurrer  ore  tenus,  and  merely  amounts 


EQUITY    PLEADING  213 

to  giving  the  defendant  the  same  advantage  as  if  his  de- 
murrer had  been  both  special  and  general. 

Under  certain  circumstances  there  may  be  a  demurrer 
to  the  discovery  alone. 

A  demurrer  admits  the  truth  of  all  facts  well  pleaded  in 
the  bill,  for  the  purpose  of  the  argument  on  the  demurrer. 

If  a  demurrer  is  sustained  the  complainant  is  generally 
given  leave  to  amend  his  answer,  unless  it  is  evident  that 
no  good  bill  can  be  framed  on  the  complainant's  cause  of 
action.  When  a  demurrer  is  overruled,  the  general  prac- 
tice is  for  an  order  to  be  entered  for  the  defendant  to 
answer. 


CHAPTER  XXIII. 
EVIDENCE. 

The  distinction  must  be  noted  at  the  outset  between  piooC 
and  evidence.  Proof  is  the  establishment  of  conviction  as 
to  the  truth  or  falsity  of  a  certain  fact.  Evidence  is  tlu- 
means  by  which  proof  is  secured. 

Relevant  evidence  is  such  evidence  as  tends  lo  prove, 
or  disprove,  the  point  at  issue. 

Competent  evidence  is  such  evidence  as  the  law  permits 
to  be  introduced.  Evidence  may  be  relevant  but  still  not 
competent,  as  the  court  may  exclude  it  as  being  too  in- 
direct, or  too  probablj'  false,  or  for  other  cause. 

Evidence  is  material  when  it  bears  upon  the  substantial 
matter  in  controversy. 

Direct  evidence  is  evidence  that  the  fact,  whicli  is  the 
point  in  controversy,  did  or  did  not  occur. 

Circumstantial  evidence  is  evidence  that  some  other  fact 
did  or  did  not  occur,  when  there  is  such  a  connection  be- 
tween the  fact  "which  is  the  point  at  issue,  and  such  other 
fact  whicli  is  proved  or  disproved,  that  the  truth  or  falsity 
of  the  point  at  issue  may  be  inferred  from  the  truth  or 
falsity  of  such  other  fact,  which  w^as  proved  or  disproved. 

Affirmative  evidence  is  evidence  that  a  certain  act  oc- 
curred; negative  evidence  is  evidence  that  such  fact  did 
not  occur  at  the  time  and  place  alleged.  Affirmative  evi- 
dence carries  with  it  greater  Aveight  than  negative  evidence, 
as  the  testimony  of  one  man  that  he  actually  saw  a  thing 
is  much  more  convincing  than  the  testiraonj''  of  another 
man  (of  equal  credibility)  that  he  did  not  see  it. 

Four  Principal  Rules  of  Evidence. 

The  so-called  four  principal  rules  of  evidence  are  as 
follows : 

(1)  The  evidence  must  correspond  to  the  allegations  and 
be  confined  to  the  point  at  issue. 

214 


EVIDENCE  215 

(2)  It  is  sufficient  if  the  substance  only  of  tlie  issue  be 
proved. 

(3)  The  burden  of  proof  is  always  upon  the  party  up- 
holding the  affirmative. 

(4)  The  best  evidence  of  which  a  case  is  by  its  nature 
susceptible  must  always  be  produced. 

Immaterial  variations  between  the  evidence  and  the  al- 
legations will  not  constitute  a  violation  of  the  first  rule. 

By  the  third  rule  it  is  not  meant  that  the  burden  of  proof 
is  always  upon  he  plaintiff;  when  the  defendant  pleads  by 
way  of  confession  and  avoidance,  the  burden  of  proof  falls 
upon  him.  Thus  where  the  plaintiff  sues  for  money  lent 
to  the  defendant,  and  the  latter  sets  up  payment  as  a 
defense,  the  burden  of  proof  is  upon  him.  The  burden  of 
proof  may  shift  back  and  forwards  from  one  party  to  an- 
other during  the  trial  of  a  cause. 

In  civil  suits  the  person  upon  whom  the  burden  of  proof 
falls  must  prove  his  contention  by  a  preponderance  of  evi- 
dence. In  criminal  cases  the  guilt  of  the  accused  must  be 
proved  beyond  a  reasonable  doubt. 

Best  Evidence. 

Primary  evidence  is  that  evidence  which  affords  the 
greatest  certainty  of  the  fact  in  issue.  All  other  evidence 
is  secondary.  Thus  the  best  evidence  of  a  written  docu- 
ment is  such  document  itself.  A  copy  of  such  document 
or  oral  testimony  as  to  its  contents  are  both  secondary  evi- 
dence. 

The  only  important  application  of  this  "best  evidence" 
rule  at  the  present  time  is  that  requiring  the  production  of 
the  original  copy  of  any  written  instrument,  except  a  no- 
tice, whose  contents  it  is  desired  to  prove.  An  exception 
is  made  (on  the  ground  of  public  convenience)  in  the  case 
of  public  documents,  which  can  generally  be  proved  by 
exemplified  or  certified  copies. 

If  it  is  impossible  to  produce  the  original  copy  of  any 
document,  then,  upon  the  proof  of  the  impossibility  of  such 
production,    secondary   evidence   may   be   produced.      If   it 


216  putney's  bar  examination  review 

appears  that  the  original  document  is  withheld  by  design, 
then  secondary  evidence  can  never  be  produced  by  the 
party  guilty  of  withholding  such  document. 

If  the  original  document  which  one  party  to  a  suit  de- 
sires to  introduce  is  in  the  possession  of  his  opponent,  he 
must  call  upon  him  (in  the  proper  formal  manner  required 
by  the  laws  of  the  state)  to  produce  it  in  court  at  the  trial. 
Failure  to  so  produce  it  under  these  circumstances  will 
permit  the  introduction  of  secondary  evidence. 

It  is  an  important  rule  of  evidence  that  parol  testimony 
cannot  be  received  to  vary  the  terms  of  a  written  instru- 
ment. Latent  ambiguities  in  a  written  instrument  may  be 
explained  by  parol,  but  patent  ambiguities  cannot. 

Presumptions. 

Presumptions  are  divided  into  presumptions  of  law  and 
presumptions  of  fact.  Presumptions  of  law  are  those  rules 
of  law  which  hold  that  the  existence  of  a  certain  state  of 
facts  will  always,  either  absolutely  or  prima  facie,  prove 
the  existence  of  some  other  fact. 

Presumptions  of  law  are  divided  into  conclusive  pre- 
sumptions and  rebuttable  presumptions.  Evidence  can  l)e 
introduced  to  rebut  the  force  of  the  latter  class  of  pre- 
sumptions, but  no  evidence  can  be  received  against  the 
former  class. 

Presumptions  of  law  are  based  either  upon  the  funda- 
mental principles  of  justice,  or  the  laws  of  nature,  or  the 
general  experience  necessary  to  create  a  presumption  of 
law.  The  exact  dividing  line  between  rebuttable  presump- 
tions of  law,  and  presumptions  of  fact  is  at  times  a  diffi- 
cult one  to  trace.  Certain  presumptions  of  law,  known  as 
''false  presumptions  of  law,"  are  based  upon  no  inference 
of  fact,  and,  indeed,  while  upheld  on  the  ground  of  public 
policy,  are  manifestly  contrary  to  the  real  truth  of  the 
matter.  An  illustration  of  this  class  of  presumption  is  the 
one  that  everybody  is  supposed  to  know  the  law,  when  it 
is  evident  from  the  dissenting  opinions,  that  in  many  im- 
portant cases  only  five  out  of  the  nine  members  of  the  Su- 
preme Court  of  the  United  States,  knew  the  correct  law. 


EMDKN'CE  217 

Among  the  important  presumptions  of  law  are  the  fol- 
lowing : 

A  state  of  facts  once  known  to  exist  is  supposed  to  con- 
tinue until  the  contrary  appears. 

A  marriage,  proved  to  have  existed,  is  presumed  to  con- 
tinue. 

If  the  relations  between  a  man  and  woman  are  proved 
unlawful,  the  illegal  character  of  the  relations  is  presumed 
to  continue. 

Death  is  presumed  from  seven  years'  absence  without 
any  tidings  being  received  from  the  absent  party.  (Seven 
years  is  the  period  required  at  common  law  for  this  pre- 
sumption to  arise;  in  Illinois,  five  years  has  been  fixed  as 
the  period,  and  various  other  periods  have  been  established 
by  statutes  in  other  states.) 

A  letter  properly  addressed,  stamped,  and  mailed  is  pre- 
sumed to  have  been  received  in  due  course  by  the  person 
to  whom  it  is  addressed. 

A  child  under  seven  years  of  age  is  presumed  incapable 
of  committing  a  crime. 

Illustrations  of  these  presumptions  might  be  multiplied 
almost   indefinitely. 

Presumptions  of  fact  are  those  logical  deductions  which 
a  jury  is  permitted  to  draw  from  the  facts  which  have 
been  proved. 

Judicial  Notice. 

There  are  certain  things  of  which  the  court  Avill  take 
what  is  known  as  judicial  notice,  thus  dispensing  with  the 
need  of  any  proof  upon  the  subject  at  all. 

Among  the  facts  of  which  the  courts  will  thus  take  judi- 
cial notice  are  the  following: 

The  existence  of  recognized  foreign  governments,  their 
flags  and  their  seals  of  state,  their  public  acts,  decrees  and 
judgments,  the  law"  of  nations,  the  general  customs  and 
usages  of  merchants ;  the  seals  of  notaries  public  and  for- 
eign admiralty  and  maritime  courts;  matters  of  common 
knowledge  of  every  person  of  ordinary  understanding  and 
intelligence ;  the  coincidence  of  days  of  the  week  with 
days  of  the  month;  the  time  when  the  sun  or  moon  rises 


218  putney's    15AU    EXAMINATION    KEVIEW 

or  sets  on  a  particular  day  or  night ;  tlie  legal  standard 
oi"  weights,  measures  and  values,  as  established  by  law, 
or  in  common  use;  scientific  and  medical  facts  universally 
conceded  and  of  common  knowledge ;  agreed  facts  and 
stipulations;  facts  once  judicially  known  through  former 
litigation;  courts  sitting  in  a  particular  State  have  judicial 
knowledge  of  the  boundaries  of  that  State  and  of  the 
United  States;  of  the  locations  of  their  political  divisions; 
their  boundaries,  in  so  far  as  prescribed  by  public  statutes; 
geographical  facts  of  common  knowledge ;  boundaries  of 
states  and  territories  wherein  they  are  sitting;  of  great 
lakes  and  rivers  and  their  navigability;  locations  of  promi- 
nent mountains  and  mountain  ranges ;  distance  and  time 
of  travel  between  cities;  main  facts  of  history;  general 
history  of  the  State;  the  ordinary  course  of  nature;  the 
phenomena  of  human  life ;  meaning  of  words,  phrases  and 
abbreviations ;  the  written  and  unwritten  law  of  the  forum ; 
law  merchant;  maritime  law;  of  the  form  of  government 
established  by  law,  and  of  the  executive  and  judicial  offi- 
cers thereof. 

As  aids  in  such  matters,  the  courts  may  refer  to  stand- 
ard publications  in  which  information  upon  such  subjects 
can  be  found,  such  as  histories,  geographies,  almanacs, 
official  publications,  etc. 

Hearsay  Evidence. 

Hearsay  evidence  includes  any  statement,  either  oi-al 
or  written,  which  depends  wholly  or  partly  upon  the  re- 
liability of  some  other  person  than  the  witness  who  utters 
the  statement  or  introduces  the  writing. 

The  general  rule  is  that  hearsay  evidence  is  not  admis- 
sible. There  are  several  reasons  for  this  rule,  the  prin- 
cipal one  being  the  lack  of  opportunity  of  cross  examining 
the  person  upon  whose  authority  the  statement  primarily 
rests. 

There  are,  however,  certain  apparent,  and  certain  real 
exceptions  to  this  rule  against  the  admissibility  of  hearsay 
evidence. 


EVIDENCE  219 

The  apparent  exceptions  are  as  follows: 

(1)  Where    the    fact    that    the    words    were    spoken, 
ratiier  than  their  truth,  is  the  real  point  at  issue. 

(2)  Expressions  of  bodily  or  mental  suffering. 

(3)  Matters   of   general   and   public   interest. 

(4)  Statements  as  to  pedigree. 

The  principal  real  exceptions  are  as  follows: 

(5)  Declarations  against  interest. 

(6)  Admissions. 

(7)  Confessions. 

(8)  Ancient  possessions  and  documents. 

(9)  Dying  declarations. 

(10)  Evidence  as  to   character. 

(11)  Testimony  of  witnesses  who  have  subsequently 
died  or  removed  out  of  the  jurisdiction  of  the  court. 

(12)  Words  constituting  part  of  the  res  gestae. 

Discussing  these  various  apparent  and  real  exceptions 
more  in  detail : 

(1)  Under  this  exception  would  be  included  the  proof 
of  the  publication  of  the  alleged  defamatory  statements  in 
suits  for  slander  or  libel.       •• 

(2)  Such  expressions  are  facts,  the  proof  of  which 
tends  to  show  the  condition  of  the  party  uttering  them.  This 
might  be  important  in  personal  injury  cases. 

(3)  An  existing  general  belief  among  the  public  in  a 
community,  is  rather  a  fact,  than  testimony  by  the  mem- 
bers  of  the   community   collectively. 

(4)  Declarations  as  to  the  pedigree  of  a  person  or 
family,  are  admissible  when  made  before  the  commence- 
ment of  the  suit,  by  a  person  since  deceased,  who  was 
(legitimately)  related,  either  by  blood  or  marriage,  to  the 
person,  or  family,  whose  pedigree  is  in  dispute. 

(5,  6  &  7)  Declarations  against  interest,  admissions,  and 
confessions  are  all  closely  connected.  All  three  are  ad- 
mitted upon  the  ground  of  the  extreme  improbability  of  a 
person  making  false  statements  against  his  own  interests. 


220  PUTNEY  S    BAR    EXAMINATION    REVIEW 

Declarations  against  interest,  as  here  used,  mean  state- 
ments or  book  entries,  made  by  a  person,  since  deceased, 
who  WHS  not  a  party  or  in  any  way  financially  interested 
in  the  pending  suit,  and  whicli  statement  or  book  entry 
was  against  the  interests  of  the  party  making  it,  at  the 
time  it  was  made. 

xVdmissions  are  statements  against  the  interest  of  the 
party  making  them,  made  by  a  party  to  a  civil  suit;  or  ad- 
missions of  matters  of  fact  made  by  a  party  to  a  criminal 
suit,  which  are  against  the  interests  of  the  party  making 
them  but  which  are  not  sufficient  to  amount  to  an  acknowl- 
edgment of  guilt.  Admissions  are  either  private  or  public. 
The  former  are  made  out  of  court  and  may  be  rebutted; 
the  latter  are  made  in  the  course  of  the  judicial  proceed- 
ings by  pleadings  or  stipulations,  and  are  conclusive. 

A  confession  is  an  acknowledgment  of  guilt  made  in  a 
criminal  case.  To  be  admissible  the  accused  must  not  have 
been  induced  to  make  the  confession  either  by  threats,  vio- 
lence, or  promise  of  immunity.  Confessions,  however,  ob- 
tained as  the  result  of  spiritual  exhortations  or  collateral 
promises  are  admissible. 

(8)  A  deed  or  other  instrument,  thirty  j^ears  old,  or 
over,  is  known  as  an  ancient  document,  and  if  it  comes 
from  its  natural  depository  and  is  regular  on  its  face,  it 
is  said  to  prove  itself,  and  may  be  admitted  as  evidence, 
wnthout  the  support  of  other  evidence. 

(9)  The  declarations  of  a  person,  who  meets  his  death 
as  the  result  of  a  homicide,  as  to  the  acts  resulting  in  his 
death,  are  admissible,  provided  such  party  is  in  a  rational 
state  of  mind  and  has  given  up  all  hope  of  recovery  at  the 
time  the  statement  was  made,  and  did,  as  a  fact,  die  from  the 
injuries  received. 

(10)  Evidence  of  the  bad  character  of  the  accused  can- 
not be  introduced  by  the  prosecution  in  a  criminal  case, 
unless  such  bad  character  is  an  essential  element  of  the 
alleged  crime.  The  accused  always  has  the  right  to  intro- 
duce evidence  of  his  good  character,  and  if  this  is  done 
the  prosecution  may  introduce  evidence  in  rebuttal. 


EVIDENCE  221 

In  certain  civil  eases,  such  as  those  for  seduction,  breach 
of  promise,  slander  and  libel,  etc.,  the  character  of  the 
plaintiff  is  a  material  issue  (at  least  on  the  question  of  the 
amount  of  damages)  and  evidence  on  this  subject  may  be 
introduced. 

In  most  states  the  only  evidence  which  can  be  introduced 
to  impeach  the  testimony  of  a  witness  on  account  of  his 
character,  is  evidence  as  to  his  general  reputation  for  truth 
and  veracity  in  the  community  in  which  he  lives.  In  some 
States,  however,  evidence  as  to  his  general  moral  character 
may  be  introduced. 

(11)  When  a  witness  at  one  trial  of  a  case,  before  a 
second  trial,  dies  or  removes  out  of  the  jurisdiction  of  the 
court,  evidence  may  be  introduced  as  to  his  testimony  at 
the  former  trial.  Formerly  it  was  held  that  the  exact 
words  of  the  witnesses  must  be  proved,  but  later  cases  have 
relaxed  the  rule,  and  now  permit  the  substance  of  such  tes- 
timony to  be  proved  by  any  person  who  took  notes  of  the 
testimony,  and  will  swear  to  their  accuracy,  or  who  will 
swear  to  the  testimony  from  his  own  memory. 

(12)  The  res  gestae  includes  all  those  acts  which  are 
so  connected  Avith  the  main  transaction  as  to  become  part 
of  it.  Spontaneous  declarations,  made  simultaneously  with 
a  transaction  or  occurrence,  and  relative  thereto,  are  con- 
sidered as  part  of  the  res  gestae,  and  admissil)le  in  evidence 
in  connection  with  evidence  as  to  the  main  facts  of  the 
transaction. 

Witnesses. 

The  greater  part  of  the  evidence  presented  in  courts  of 
law  is  by  means  of  witnesses. 

Formerly  many  classes  of  people  were  excluded  by  the 
common  law  from  testifying,  but  such  disabilities  have 
been  very  generally  removed  at  the  present  time. 

At  common  law,  a  party  to  the  suit  could  not  testify  in 
either  a  civil  or  a  criminal  suit.  Now,  he  has  the  right  to 
testify  in  both,  but  cannot  be  compelled  to  testify  in  a 
criminal  suit  unless  he  chooses. 

The  husband  or  wife  of  a  party  to  a  suit  was  also  pro- 


222  putney's    liAli    EXAMINATION'    UEVIEW 

hibited  from  testifying  in  such  suit.  This  ilisahilily  has 
not  been  entirely  removed,  but  most  states,  by  statute,  per- 
mit such  testimony  in  certain  cases,  as  where  the  suit  is 
between  the  husband  and  wife,  or  one  acted  as  agent  for 
the  other,  etc.  The  law  of  Illinois  presents  the  peculiarity 
of  permitting  the  wife  to  testify  when  she  acted  as  agent 
for  her  husband,  but  prohibiting  the  husband  from  testify- 
ing when  he  acted  as  agent  for  his  wife. 

Accomplices  and  accessories  may  be  permitted  to  testify, 
and  a  conviction  obtained  on  their  testimony.  A  party, 
however,  cannot  be  convicted  upon  the  uncorroborated  tes- 
timony of  an  accomplice  who  admits  that  he  has  been 
promised  immunity. 

Persons  who  have  been  convicted  of  an  infamous  crime 
(and  who  were  excluded  at  common  law)  may  now  testify, 
but  such  conviction  may  be  shown  as  affecting  their  cred- 
ibility. 

Persons  of  unsound  mind  may  testify  if  the  condition  of 
their  mind  is  such  as  to  enable  them  to  retain  tlie  nu-inory 
of  what  they  have  seen  orJieard.  The  degree  of  credibility 
to  be  attached  to  such  witnesses  is  for  the  jury  to  de- 
termine. 

Deaf  and  dumb  persons  are  now  permitted  to  testify  and 
their  testimony  (in  most  States)  can  be  given  either  in 
writing  or  by  the  sign  language. 

The  admissibility  of  the  evidence  of  children  under  four- 
teen years  of  age  rests  with  the  discretion  of  the  court. 
The  test  generally  is  whether  the  child  understands  the 
nature  of  an  oath,  and  the  wrong  and  consequences  of 
breaking  it.  A  child  as  young  as  four  years  has  been  per- 
mitted to  testify.  The  weight  to  be  given  to  the  testimony 
of  young  children  rests  with  the  jury. 

A  person's  religious  belief  is  no  longer  a  bar  to  his  testi- 
fying in  court.  If  it  is  against  a  person's  belief  and  prin- 
ciples to  take  an  oath,  he  may  be  allowed  to  affirm. 

It  is  now  generally  held  that  a  member  of  a  grand  jury 
may  be  called  as  a  witness,  under  proper  circumstances 
and  examined  as  to  what  took  place  before  the  grand  jury, 


EVIDENCE  223 

such  examination,  however,  not  extending  to  the  question 
as  to  how  any  partieuhir  juror  voted. 

A  judge  cannot  testify  in  a  cause  being  heard  before 
liim,  but  there  is  no  hiw  to  absolutely  prohibit  a  juror  in 
the  case,  from  so  testifying.  The  attorney  trying  the  case 
may  also  testify  for  his  client,  but  such  an  action  on  his 
part,  except  in  very  exceptional  cases,  would  indicate  an 
utter  disregard  of  professional  ethics. 

Several  States  in  the  country  have,  or  have  had,  statutes 
denying  or  limiting  the  rights  of  Indians,  Chinamen,  or 
Negroes  to  testify. 

Privileged  Communications. 

Certain  communications  are  considered  by  the  law  as 
being  privileged,  and  the  law  will  not  compel  (and  except 
with  the  consent  of  the  party  for  whom  the  protection  was 
granted),  will  not  permit,  the  introduction  of  such  testi- 
mony. 

The  most  important  of  this  class  of  communications  are 
those  between  husband  and  wife.  Communications  of  this 
class  are  still  considered  as  privileged,  even  although  the 
marriage  has  been  dissolved   by  death  or  divorce. 

The  second  important  class  of  privileged  communications 
are  those  made  to  a  lawyer  by  his  client.  The  protection 
in  this  case  is  given  for  the  protection  of  the  client,  and 
the  lawyer  will  not  be  permitted  to  divulge  them,  even  if 
he  desires  to  do  so.  This  protection  does  not  attach  to  com- 
munications made  to  an  attorney  relative  to  tlie  commis- 
sion of  a  criminal  act  in  which  the  client  and  attorney  were 
jointly  engaged. 

The  common  law  did  not  hold  as  privileged  communica- 
tions made  to  priests  or  clergymen  by  their  parishioners, 
or  to  doctors  by  their  patients.  Protection  has  been  given 
by  statu.tes  to  such  communications  in  many  States. 

Examination  of  Witnesses. 

A  witness  is  first  examined  by  the  attorney  for  the  party 
who  calls  him.     This  is  called  the  direct  examination,  or 


224  putney's  bar  examination  review 

the  examination  in  cliiei'.  After  this  comes  the  cross  ex- 
amination l)y  the  opi)ositc  party,  then  the  re-direet  exam- 
ination, and  then  the  re-cross  examination.  After  this  the 
alternate  examinations  by  the  two  parties  have  no  special 
names. 

The  princii)al  rule  governing  direct  examinations  is  that 
the  attorney  conducting  such  examination  cannot  ask 
leading  questions.  A  leading  question  is  one  which  sug- 
gests the  answer  desired.  Exceptions  to  this  rule  against 
leading  questions  are  found  in  the  following  cases: 

(1)  AVhere  the  questions  are  merely  preliminary  ques- 
tions, leading  up  to  the  real  testimony;  (2)  where  it  is  im- 
possible in  any  other  way  to  call  the  attention  of  the  wit- 
ness to  the  point  upon  Avhich  his  (^vidence  is  required,  and 
(3)  where  the  witness  is  manifestly  hostile  to  the  side  call- 
ing him. 

Leading  questions  may  be  asked  on  cross-examination. 
In  most  States  the  scope  of  the  cross-examination  must  be 
confined  to  the  matters  upon  which  the  witness  has  already 
testified  in  his  direct  examination.  If  the  party  who  is 
cross-examining  a  witness  desires  the  testimony  of  a  wit- 
ness as  to  some  matter  not  touched  upon  in  his  direct  tes- 
timony, he  must  summon  him  as  his  own  witness.  In  some 
of  the  States,  however,  a  contrary  rule  prevails  and  a  wit- 
ness may  be  asked,  in  his  cross-examination,  about  any 
matter  which  is  material  to  the  question  at  issue. 

The  scope  of  a  re-direct  examination  must  be  confined 
to  the  matters  upon  which  the  witness  was  questioned  in 
his  cross-examination,  unless  the  court,  in  its  discretion, 
permits  the  party  calling  the  witness  to  question  him  con- 
cerning some  matter  which  was  omitted  on  the  direct  ex- 
amination. 

The  court,  at  its  discretion,  may  exclude  from  the  court 
room  all  the  witnesses  except  the  one  testifying,  and  such 
witnesses  as  are  also  parties  to  the  suit. 

Rights  and  Privileges  of  Witnesses. 
In  civil  cases  a  witness  may  demand  his  statutory  wit- 
ness fee  and  mileage  in  advance,  and  may  refuse  to  attend 


EVIDENCE  225 

unless  it  is  paid.     A  witness  in  a  criminal  case,  however, 
t-annot  reiiise  to  attend  ))e('ause  his  fees  are  not  t)aid. 

A  witness  is  privileged  li-oni  arrest,  except  in  cases  of 
treason,  felony,  or  breach  of  the  peace,  while  attending  a 
case,  or  going  to,  or  returning  from  the  same. 

Books  and  Memoranda. 

Books  of  account,  properly  and  regularly  kept,  may  be 
introduced  in  evidence  for  the  party  keeping  them,  upon 
the  testimony  of  the  party  or  his  bookkeeper  showing  how 
the  books  were  kept. 

A  witness  upon  the  stand  will  be  allowed  to  refresh  his 
memory  by  the  aid  of  written  documents  or  memoranda 
in  the  following  cases:  (1)  AVhere  the  reading  of  the  writing 
refreshes  his  memory  and  he  is  then  able  to  swear  to  the 
truth  of  the  statements  contained  therein,  as  from  his 
own  memory;  (2)  where  he  can  remember  writing  the 
memoranda  and  remembers  that  he  knew  the  statements 
to  be  true  when  he  wrote  them;  and  (3)  where,  although 
after  reading  the  paper  he  can  neither  re-call  the  facts 
stated,  or  even  the  fact  of  writing  the  paper,  but  recognizes 
the  signature,  or  the  handwriting  as  his  own,  and  is  able 
to  swear  on  account  of  his  system  of  doing  business  that 
such  a  paper  was  written  by  him  shows  certain  things  to 
have  been  true. 

Maps,  Photographs,  .Etc. 
Maps,  photographs.  X-ray  photographs,  etc.,  may  be  ad- 
mitted in  evidence,  upon  proper  proof  of  their  accuracy, 
when  they  present  evidence  tending  to  prove  or  disprove 
any  of  the  contentions  in  the  case. 

Expert  Witnesses. 

An  expert  witness  is  one  called,  not  to  testify  as  to  the 
facts  of  the  case  on  trial,  but  to  give  an  expert  opinion 
on  some  question  or  questions,  which  only  those  with  a 
specialized  training  can  be  supposed  able  to  answer. 

The  following  have  been  held  proper  subjects  of  expert 
testimony:     IMeaning  of  entries  in  books;  agriculture  and 


220  putney's  bar  examination  ueview 

crops;  diseases  of  men  or  of  animals;  blood  and  blood- 
stains; the  nature  and  effects  of  poisons;  architecture  and 
building ;  chemistry ;  all  branches  of  medicine  and  surgery ; 
anatomy;  electricity;  explosives  and  iire-arms;  engineer- 
ing and  machinery  ;  cause  of  death ;  drowning ;  suffocation ; 
strangulation;  time  of  death;  post-mortem  examinations; 
rape;  nature,  cause  and  effect  of  wounds,  and  the  means  by 
"which  probablj'  inflicted ;  distance  at  which  shot  was  fired ; 
whether  wounds  were  suicidal  or  homicidal ;  seaworthiness 
of  vessels  and  seamanship ;  surveying ;  photography ; 
weather ;  law  of  a  foreign  state ;  gas  and  steam  fitting ; 
geology ;  elevator  devices  ;  midwifery  ;  botany  ;  banking ; 
insanity;  malpractice,  injuries  and  wounds,  etc. 

Before  a  person  can  testify  as  an  expert  he  must  qualify 
by  showing  his  education,  experience,  etc.  It  is  generally 
sufficient  for  the  party  calling  him  to  make  out  a  pi'ima 
facie  case  of  qualification,  leaving  it  to  the  other  side  to 
go  further  into  the  matter  of  the  witness'  qualifications, 
if  they  so  desire,  upon  their  cross  examination. 

It  is  not  a  ground  upon  which  to  object  to  the  introduc- 
tion of  an  expert  witness,  that  a  more  experienced  and  bet- 
ter qualified  witness  could  have  been  obtained. 

Expert  witnesses  are  examined  by  means  of  hypothetical 
questions.  Such  questions  should  include  all  the  undis- 
puted material  facts  bearing  upon  the  case,  or  all  the  un- 
disputed facts  together  with  such  other  material  facts  as 
the  side  asking  the  questions  alleges  to  be  true,  and  has 
introduced  evidence  to  sustain.  If  the  opposing  counsel 
thinks  that  a  hypothetical  question  is  unfairly  stated,  on 
account  of  the  oniission  of  material  facts,  he  may  re-frame 
the  question,  to  meet  his  own  views  and  ask  such  question 
upon  the  cross-examination. 

The  opinion  of  a  non-expert  may  be  asked  upon  many 
questions  upon  which  a  man  of  ordinary  knowledge  and 
experience  should  be  able  to  frame  a  reasonably  accurate 
opinion.     Among  such  subjects  are  included : 

The  sanity  or  apparent  health  of  a  person  by  him  ob- 
served;  speed  of  railway  trains  and  street  cars;  condition 


EVIDENCE  JJ< 

of  tracks  and  ties;  age  of  a  person:  the  identification  of 
persons,  animals,  or  things ;  intoxication  of  an  individual ; 
lieat;  cold;  light;  darkness;  shape;  size;  distance;  quan- 
tity; time  and  duration;  force  of  a  sudden  jerk  of  a  car; 
conduct  and  demeanor  of  a  person  not  easily  described. 

Depositions. 

A  deposition  is  the  testimony  of  a  witness  taken  out  of 
court,  but  under  the  authority  of  the  court,  reduced  to 
writing  and  signed  by  the  witness. 

Depositions  must  be  taken  before  some  person  duly  au- 
thorized by  law.  such  as  a  Notary  Public,  Master  in  Chan- 
cery, Commissioner,  etc. 

Depositions  may  be  taken  where  the  witness  is  witiiout 
the  jurisdiction  of  the  court,  or  is  about  to  move  out  of 
.such  jurisdiction;  where  the  witness  is  sick  and  is  about 
to  die,  or  is  too  sick  to  appear  in  court ;  or  where  it  is  de- 
sired to  perpetuate  the  testimony  of  an  aged  or  infirm  wit- 
ness on  account  of  probable  future  litigation. 

A  deposition  is  taken  under  the  authority  of  a  dedimus 
protestatum,  issued  out  of  the  court  before  which  the  cause 
is  pending. 

Depositions  may  be  taken  either  upon  written  or  oral 
interrogatories.  In  either  ease  the  opposite  party  has  the 
right  to  cross  examine  by  the  same  method. 

Tlie  party  taking  the  deposition  of  a  witness  is  not 
obliged  to  introduce  it  in  evidence,  but  if  he  fails  to  do  so, 
his  opponent  has  the  right  to  introduce  it. 


CHAPTER  XXIV. 
DAMAGES. 

Damages  are  the  pecuniary  reparation  which  the  law 
compels  a  wrongdoer  to  make  to  the  person  injured  by  his 
wrong. 

Damages  are  in  general  compensatory  and  their  amount 
is  in  proportion  to  the  injury  sustained.  In  a  few  cases  of 
torts  accompanied  by  fraud,  gross  negligence,  oppression 
or  malice,  exemplary  damages  may  also  be  allowed  against 
the  defendant. 

Damages  must  be  certain.  Hypothetical  or  speculative 
damages  cannot  be  recovered  for.  It  is  not  necessary,  how- 
ever, that  the  exact  pecuniary  value  of  the  damages  can 
be  ascertained.  In  many  cases,  such  as  injury  to  the  per- 
son, the  extent  of  the  loss  can  only  be  api)roximated  to. 

Damages  can  only  be  recovered  for  which  are  the  proxi- 
mate result  of  the  wrong.  Remote  consequences  cannot  be 
recovered  for.  The  question  as  to  what  are  proximate  con- 
sequences and  what  are  remote  consequences  is  a  question 
of  fact  rather  than  of  law. 

Losses  are  either  direct  or  consequential.  Direct  losses 
are  those  which  proceed  directly  from  the  wrongful  con- 
duct, without  the  intervention  of  any  intermediate  cause. 
Consequential  losses  are  those  occurring  after  the  inter- 
vention of  some  intervening  cause.  Consequential  losses 
may  be  either  proximate  or  remote.  Recovery  may  be 
had  for  direct  losses  and  for  such  consequential  losses  as 
are  proximate  consequences  of  the  w^rongful  act. 

The  three  principal  rules  governing  the  damages  which 
can  be  recovered  for  in  the  case  of  the  breach  of  a  con- 
tract (laid  down  in  the  case  of  ITadley  vs.  Baxendale)  are 
as  follows : 

"First,  that  damages  which  may  fairly  and  reasonably 
be  considered  as  naturally  arising  from  a  breach  of  con- 

228 


DAMAGES  229 

trcU't,  according  to  tlie  usual  course  of  tilings,  are  always 
recoverable;  secondly,  that  damages  which  would  not  arise 
in  the  usual  course  of  things  from  a  breach  of  contract,  but 
which  do  arise  from  circumstances  peculiar  to  the  special 
case,  are  not  recoverable  unless  the  special  circumstances 
are  knoAvn  to  the  person  who  has  broken  the  contract; 
thirdly,  that  where  the  special  circumstances  are  known,* 
or  have  been  communicated  to  the  person  who  breaks  the 
contract,  and  where  the  damages  complained  of  flow  nat- 
urally from  the  breach  of  contract  under  those  special  cir- 
cumstances, then  such  special  damages  must  be  supposed 
to  have  been  contemplated  by  the  parties  to  the  contract 
and  are  recoverable.  A  further  rule  is  implied,  viz.,  that 
damage  which  cannot  be  considered  as  fairly  and  naturally 
arising  from  breach  of  contract  under  any  given  circum- 
stances is  not  recoverable,  whether  those  circumstances 
were  or  were  not  known  to  the  person  who  is  being 
charged."     (ITale  on  Damages,  pp.  55-6.) 

In  suits  on  bonds  the  measure  of  recovery  is  the  dam- 
age sustained,  and  not  the  face  of  the  bond. 

In  a  suit  on  an  alternative  contract  the  measure  of  dam- 
age for  its  breach  is  compensation  for  the  least  beneficial 
alternative. 

In  case  of  failure  or  error  in  sending  a  telegram,  dam- 
ages may  be  recovered  for  all  the  proximate  consequences 
of  the  mistake,  unless  the  company  (as  is  generally  the 
case)  has  limited  its  liability  through  the  adoption  of  rea- 
sonable regulations. 

In  case  of  a  breach  of  promise  to  marry  the  following 
elements  of  damage  may  be  recovered  for:  The  money  loss 
of  the  marriage,  the  injury  to  the  plaintiff's  feelings,  and 
the  mortification  and  distress  occasioned  to  the  plaintiff 
by  the  failure  of  the  defendant  to  fulfill  the  contract. 

In  actions  of  tort  for  the  destruction  of  property  the 
measure  of  damage  is  the  value  of  the  property.  Where 
personal  property  is  damaged  the  measure  of  damage  is 
the  difference  between  the  value  of  the  property  before  and 
after  being  damaged. 


230  putney's  bar  examixatiox  ki:vi.ew 

No  general  rule  can  be  laid  down  ;is  to  the  measure  of 
damages  in  the  case  of  personal  injuries.  Many  elements 
must  be  considered  in  such  cases,  sucli  as  the  expense  in- 
curred, loss  of  time,  suffering,  impairment  of  earning  ca- 
pacity', etc.  Where  one  person  l)rings  an  action  for  the 
death  or  injury  of  another  the  measui-e  of  damages  (at 
least  in  theory)  is  the  iieeunijiry  Utss  suffered  by  the  plain- 
tiff in  the  action. 

Generally,  neither  expense  of  litigation,  nor  interest  on 
unli(|uidatetl  demands,  can  be  recovered  as  damages. 


CHAPTER  XXV. 
CODE  PLEADING. 

Code  pleading  is  the  naiiu'  given  to  that  reformed  and 
simplified  system  of  pleading  which  has  been  adopted  in 
a  little  more  than  half  the  states  in  the  country.  The  codes 
of  the  ditl'erent  states  ditt'er  more  or  less  from  each  other, 
and  the  preparation  for  the  Bar  examination  in  any  code 
.state  must  include  a  careful  study  of  the  text  of  code  gov- 
erning pleading  in  that  particular  state.  Certain  funda- 
mental principles,  however,  are  common  to  the  codes  of 
the  different   states. 

By  the  codes  all  di.stinetions  between  legal  and  equitable 
actions,  and  betwen  actions  ex  contractu  and  ex  delicto 
are  abolished,  and  there  is  but  a  single  form  of  civil  action. 

The  real  party  in  interest,  instead  of  the  nominal  party 
in  interest,  must  always  bring  the  suit.  The  technical  rules 
of  the  common  law,  governing  the  joinder  of  parties,  have 
been  abandoned,  and  the  equitable  rules  allowing  the  join- 
ing of  all  interested  parties,  for  the  purpose  of  preventing 
a  multiplicity  of  suits  have  been  adopted. 

There  are  but  three  pleadings  under  the  codes:  The 
complaint  (by  the  plaintiff*),  the  answer  (by  the  defend- 
ant) and  the  reply  (by  the  plaintiff).  The  place  of  the 
later  common  law  pleadings  are  supplied  by  freely  permit- 
ting amendments  to  the  complaint  and  answer.  The  coun- 
ter claim  under  the  code  corresponds  in  a  way  with  the 
set-off,  allowed  under  common  law  pleading,  but  more 
closely  to  the  cross  bill  in  equity  pleading. 

Demurrers  exist  under  the  codes,  and  have  in  general 
the  same  effect  as  at  common  law.  The  causes  for  which 
demurrers  may  be  taken  are  generally  enumerated  in  the 
codes. 

Great  liberality  is  allowed  relative  to  the  joinder  of  dif- 
ferent causes  of  action  in  one  suit,  and  the  rules  govern- 

231 


232  putney's  bar  examination  review 

ing  pleading  have  been  simplified  to  as  great  an  extent  as 
possible. 

The  doctrine  of  lis  pendens  generally  does  not  apply  in 
cases  of  actions  under  codes,  unless  notice  of  the  right 
claimed  by  the  suit  is  recorded  with  the  proper  county 
official. 


CHAPTER  XXVL 

LEGAL  ETHICS. 

Legal  ethics  treat  of  the  duties  which  a  lawyer  owes 
to  the  court,  to  the  public,  to  his  clients  and  to  other  at- 
torneys. The  American  Bar  Association  has  adopted  a 
code  of  legal  ethics  which  may  be  taken,  as  setting  forth 
the  proper  relations  to  be  observed  in  all  the  above  men- 
tioned cases.  This  code  is  given  as  Appendix  ,r  to  this 
volume,  and  a  study  of  this  code  should  be  sufficient  to 
prepare  the  student  for  the  bar  examination  on  this  subject. 


231 


CHAPTER  XXVII. 
IRRIGATION  LAW. 

Irrigation  is  defined  as  the  ''act  of  watering  or  moisten, 
ing;  especially  the  distribution  of  water  over  the  surface 
of  land  to  promote  the  growth  of  plants."  (Century  Dic- 
tionary.) 

At  the  present  time,  the  term  irrigation  is  generally 
used  in  connection  with  the  watering  of  land  by  means 
of  ditches  constructed  for  this  purpose.  This,  however,  is 
very  far  from  being  the  full  legal  significance  of  the  term. 
Irrigation  takes  place  whenever  water  is  applied  artificially 
to  land  for  agricultural  purposes,  whatever  methods  are 
used  in  the  application  of  water. 

Irrigation  Under  the  Common  Law. 

Irrigation  was  never  of  much  importance  in  England, 
and  few  decisions  under  the  Common  law  are  to  be  found 
on  this  subject,  the  rights  of  the  owner  of  land  to  make 
use  of  water  for  irrigation  purposes  being  governed  by 
the  general  principles  governing  the  rights  and  duties  of 
riparian  owners.  Under  the  Common  law,  any  riparian 
owner  has  the  right  to  make  a  reasonable  use  of  such 
water  for  irrigation  purposes. 

Irrigation  Law  in  the  Arid  States. 

In  the  Pacific  and  Rocky  mountain  states,  and  southwestern 
states  and  territories,  the  subject  of  irrigation  is  of  such 
vital  importance  to  the  welfare  and  development  of  the 
state  that  it  has  become  the  subject  of  many  constitutional 
and  statutory  enactments. 

The  ditference  between  the  Common  law  and  the  law  of 
the  arid  states  on  this  subject  are  thus  set  out  by  the 
Supreme  Court  of  Colorado,  in  the  case  of  Oppenlander 
vs.  Left  Hand  Ditch  Company: 

234 


IRRIGATION  LAW  235 

"At  Comiuou  law  the  water  uf  a  natural  stream  is  an 
incident  of  the  soil  through  which  it  iiows;  under  the  con- 
stitution the  unapijropriated  water  of  every  natural  stream 
is  the  property  of  the  public.  At  Common  law,  the 
riparian  owner  is,  for  certain  purposes,  entitled  to  the  ex- 
clusive use  of  the  water  as  it  flows  through  his  land;  un- 
der the  constitution  the  use  of  the  water  is  dedicated  to 
the  people  of  the  state  subject  to  appropriation.  The 
riparian  owner's  right  to  the  use  of  water  does  not  depend 
upon  user  and  is  not  forfeited  by  nonuser;  the  appro- 
priator  has  no  superior  right  or  privilege  in  respect  to  the 
use  of  water  on  the  ground  that  he  is  a  riparian  oAvner; 
his  right  to  use  depends  solely  upon  appropriation  and 
user;  and  he  may  forfeit  such  right  by  abandonment  or 
by  nonuser  for  such  length  of  time  as  that  abandonment 
may  be  implied.  A  riparian  proprietor  owning  both  sides 
of  a  running  stream  may  direct  the  water  therefrom,  pro- 
vided he  returns  the  same  to  the  natural  stream  before  it 
leaves  his  own  land,  so  that  it  may  reach  the  riparian  pro- 
prietor below  without  material  diminution  in  quantity, 
quality  or  force;  the  appropriator,  though  he  may  not  own 
the  land  on  either  bank  of  a  running  stream,  may  divert 
the  water  therefrom,  and  carry  the  same  whithersoever 
necessity  may  require  for  beneficial  use,  without  return- 
ing it  or  any  of  it  to  the  natural  stream  in  any  manner. 
The  appropriator  may,  under  certain  circumstances,  change 
the  point  of  diversion  as  well  as  the  place  of  application 
of  the  water;  he  has  a  property  right  in  the  water  law- 
fully diverted  to  beneficial  use.  and  may  dispose  of  the 
same  separate  and  apart  from  the  land  in  connection  with 
which  the  right  ripened  to  anyone  who  will  continue  such 
use  without  injury  to  the  rights  of  others. 

''Thus  it  appears  that  the  constitution  has,  to  a  large 
extent,  obliterated  the  Common  law  doctrine  of  riparian 
rights  and  substituted  the  Common  law  doctrine  of  ap- 
propriation." 

The  laws  in  these  states  vary  greatly  from  each  other, 
but  all  of  them  have  wholly  or  entirely  repealed  the  Com- 
mon law  on  the  subject. 


236  putney's  bar  examination  review 

Tli(3  doetriiu'  of  ri})ari;iii  rights  is  reco|^ni/c'(l  in  Mon- 
tana, California,  Nebraska,  North  Dakota,  Oregon  and 
Washington,  and  to  a  limited  extent  in  Texas.  It  is  ex- 
pressly repudiated  in  Colorado,  Nevada,  Utah,  Wyoming 
and  Arizona.  In  the  states  which  recognize  these  rights 
of  riparian  owners,  such  rights  do  not  attach  to  the  water 
upon  the  public  domain,  and  in  some  of  these  states,  while 
the  doctrine  of  prior  appropriation  of  water  on  the  public 
lands  obtains  in  this  state,  yet  it  in  no  way  interferes  with 
the  rule  of  the  Common  law  as  to  the  right  of  a  riparian 
owner  to  be  protected  in  the  use  and  enjoyment  of  the 
water  naturally  flowing  by  or  over  his  land  as  against  sub- 
sequent appropriation  of  the  water  for  irrigation  or  other 
purposes. 

In  several  states  (i.  e. :  California,  Idaho,  Montana,  and 
Washington)  the  use  of  water  for  irrigation  is  declared 
to  be  a  public  use. 

Appropriation  of  Water. 

The  most  peculiar  distinctive  feature  common  to  the 
law  of  all  the  arid  states  is  that  allowing  the  appropria- 
tion of  water.  This  right  is  not  recognized  by  the  Com- 
mon law,  but  is  expressly  created  by  statute  in  certain  of 
the  arid  states,  and  is  recognized  by  the  courts  as  exist- 
ing in  the  other  of  these  states,  as  a  matter  of  necessity. 
In  Colorado  it  has  been  held  that  a  statute  was  merely 
declaratory  of  a  right  already  existing.  The  right  acquired 
by  the  appropriation  of  water  is  a  vested  right. 

In  California,  Nebraska  and  Texas  the  statutes  conferring 
and  regulating  the  right  of  appropriation  expressly  pro- 
vide that  the  rights  of  riparian  proprietors  shall  not  be 
affected  by  the  provisions  of  the  statutes. 

In  determining  the  amount  of  water  appropriated  for 
useful  or  beneficial  purposes,  the  number  of  acres  of  land 
claimed  or  owned  by  each  party,  and  the  amount  of  water 
necessary  to  the  proper  irrigation  of  the  same,  should  be 
taken  into  consideration. 

In  some  states  the  method  of  appropriating  water  is  regu- 


IKKIGATION    LAW  237 

lated  by  statute,  for  example,  the  Civil  Code  of  California, 
Sec.  1415,  provides:  "That  a  person  desiring  to  appro- 
private  water  must  post  a  notice.  *  *  *  at  the  point  of 
intended  diversion."  Section  1419  provides:  "That  a 
failure  to  comply  with  such  rules  deprives  the  claimant  of 
the  right  to  the  use  of  the  water  as  against  a  subsequent 
claimant  who  complies  therewith," 

Ownership  of  land  is  not  necessary  in  order  to  enable 
a  person  to  make  a  valid  appropriation  of  water.  When 
water  has  once  been  appropriated  there  is  no  limit  upon 
the  place  where  the  water  may  be  applied, 

"Where  the  right  to  use  water  for  irrigation  depends  en- 
tirely upon  priority  of  appropriation,  the  first  appropriator 
may  acquire  the  right  to  use  all  of  the  water  of  the  stream 
provided  he  finds  a  beneficial  use  for  all  such  water. 

The  right  to  the  use  of  water  for  irrigation  is  generally  sub- 
ject to  the  right  of  others  to  use  water  for  domestic  purposes. 

Irrigation  Ditches  and  Companies. 

Irrigation  ditches  are  held  to  be  for  a  public  purpose 
and  therefore  property  may  be  taken  by  right  of  eminent 
domain  for  this  purpose.  This  right,  however,  is  limited, 
in  that  such  ditches  must  be  so  arranged  as  to  inflict  the 
least  possible  injury  on  the  servient  estate. 

Irrigation  ditches  are  considered  real  estate. 

An  irrigation  company  is  a  quasi  public  corporation. 

Irrigation  companies  organized  by  private  enterprise  may 
have  for  their  object  the  supplying  of  water  for  irrigation 
purposes,  either  to  the  public  generally,  for  hire,  or  to  mem- 
bers only,  for  the  irrigation  of  their  own  lands.  Irriga- 
tion companies  of  the  latter  class,  sometimes  called  mutual 
ditch  companies,  are  associations  formed  by  consumers  for 
the  purpose  of  conveying  water  solely  to  irrigate  their  own 
lands,  to  be  distributed,  eitlier  upon  or  without  the  pay- 
ment of  a  fee,  to  members  only.  When  incorporated,  the 
respective  interests  of  the  members  are  represented  by 
shares  of  stock.  Private  irrigntion  companies  are  author- 
ized in  the  several  arid  states  by  statutes  conferring  upon 


238  putney's  bar  examination  review 

tlit'in   certain   rights   and   i-cgulating   the-   relations  between 
them  and  the  consumers  under  their  canals. 

A  ditch  company  is  a  common  carrier.  An  irrigation 
company  may  acquire  the  right  to  water  either  by  appro- 
priation, or  by  condemnation  proceedings,  in  those  states 
where  the  doctrine  of  ripai-iau  rights  prevail. 


CHAPTER  XXVIII. 

MINING  LAW. 

Although  ]\rining  Law  is,  strictly  speaking,  a  branch  of 
tht'  law  of  real  property,  the  legal  principles  governing 
mines  and  mining,  present  great  contrasts  to  the  American 
or  English  general  law  of  real  property.  Alining  law  is  very 
largely  statutory,  and  is  mainly  based  upon  civil  law,  rather 
than  upon  common  law,  principles. 

Sources  of  Mining  Law. 
^Mining  laws  in  th«-  I'nitcd  States  air  drawn  fi-om  the  fol- 
lowing sources : 

(1)  United  States  .statutes; 

(2)  State  statutes; 

(3)  Rules  of  mining  districts;  and 

(4)  Mining  customs. 

1'he  highest  laAv  on  the  subject  of  mining  is  to  be  found 
in  the  Federal  statutes.  Where  any  question  of  mining  law 
is  settled  by  a  provision  of  the  Federal  .statutes,  then  state 
statutes,  rules  of  mining  districts  and  mining  customs  alike 
must  yield  to  such  statute. 

Congress,  however,  has  never  deemed  it  expedient  to 
cover  the  whole  field  of  mining  law  by  statutory  enactments. 
Congress  has  permitted  the  state  and  territorial  legislatures 
to  legislate  respecting  the  location,  manner  of  recording, 
and  amount  of  work  necessary  to  hold  possession  of  a  min- 
ing claim ;  and  nearly  all  the  mining  states  and  territories 
have  passed  statutes  on  these  su})jects.  Congress  has  also 
recognized  and  continued  in  force  the  customs  of  miners, 
which  are  regarded  as  the  common  law  of  mining. 

^Mining  districts  were  first  created  in  California  in  1849. 
Mining  law  being  defective  at  tliis  time,  the  miners  in  dif- 
ferent districts  were  accustomed  to  meet  and  adopt  rules  to 
apply  in  such  district.     The  geographical  extent  and  .situa- 

239 


240  putney's  bar  examination  review 

lion  ol'  the  various  mining  districts  have  now  become  fixed. 
The  rules  oI  mining'  districts,  which  are  reasonable  and 
which  do  not  conllict  with  statutory  enactments  are  recog- 
nized and  enforced  by  the  courts.  The  existence  of  a  dis- 
trict mining  law  is  a  question  of  fact  for  the  jury.  District 
rules,  when  once  proved  are  presumed  to  continue. 

Mining  Claims. 

"All  valuable  mineral  deposits  in  lands  belonging  to  the 
United  States,  both  surveyed  and  unsurveyed,  are  hereby 
declared  to  be  free  and  open  to  exploration  and  purchase, 
and  the  lands  in  whicii  they  are  found  to  occupation  and 
purchase,  by  citizens  of  the  United  States,  and  those  who 
have  declared  their  intention  to  l)ecome  such,  under  regu- 
lations prescribed  by  law,  and  according  to  the  local  customs 
or  rules  of  miners  in  the  several  mining  districts,  so  far  as 
the  same  are  ai)plicab]e  and  not  inconsistent  with  the  laws 
of  the  United  States."  (United  States  Rev.  Stat.,  Sec. 
2319.) 

Mining  claims  may  be  located  either  by  citizens  of  the 
United  States  or  by  those  who  have  declared  their  intention 
to  become  citizens.    Location  may  be  made  by  an  agent. 

Mining  claims  are  of  two  kinds — "lode"  claims  and 
"placer"  claims. 

"A  mineral  lode  or  vein  is  a  flattened  mass  of  metallic  or 
earthly  matter,  differing  materially  from  the  rocks  or  strata 
in  which  it  occurs."     (Bainbridge  on  Mines,  P.  2.) 

"Mining-claims  upon  veins  or  lodes  of  quartz  or  other 
rock  in  place  being  gold,  silver,  cinnabar,  lead,  tin,  copper, 
or  other  valuable  deposits,  heretofore  located,  shall  be  gov- 
erned as  to  length  along  the  vein  or  lode  by  the  customs, 
regulations  and  laws  in  force  at  the  date  of  their  location. 
A  mining-claim  located  after  the  tenth  day  of  ^lay,  eighteen 
hundred  and  seventy-two,  whether  located  by  one  or  more 
persons,  may  equal,  but  shall  not  exceed,  one  thousand  five 
hundred  feet  in  length  along  the  vein  or  lode ;  but  no  loca- 
tion of  a  mining-claim  shall  be  made  until  the  discovery  of 


MINING   LAW  241 

the  vein  or  lode  within  the  limits  of  the  claim  located.  No 
claim  shall  extend  more  than  three  hundred  feet  on  each 
side  of  the  middle  of  the  vein  at  the  surface,  nor  shall  any 
claim  be  limited  by  any  mining  regulation  to  less  than  twen- 
ty-five feet  on  each  side  of  the  middle  of  the  vein  at  the 
surface,  except  where  adverse  rights  existing  on  the  tenth 
day  of  May,  eighteen  hundred  and  seventy-two,  render  such 
limitation  necessary.  The  end-lines  of  each  claim  shall  be 
parallel  to  each  other."  (United  States  Revised  Statutes, 
Section  2320.) 

The  two  requisites  for  the  acquisition  of  a  lode  mining 
claim,  provided  by  the  Federal  statutes,  are  the  discovery 
of  a  mineral  bearing  lode,  and  the  distinct  marking  of  the 
boundaries  of  the  claim. 

The  provisions  of  the  Federal  statute  as  to  tunnel  claims, 
placer  claims,  and  coal  lands  are  as  follows: 

'*AVhere  a  tunnel  is  run  for  the  development  of  a  vein  or 
lode,  or  for  the  discovery  of  mines,  the  owners  of  such  tun- 
nel shall  have  the  right  of  possession  of  all  veins  or  lodes 
within  three  thousand  feet  from  the  face  of  such  tunnel  on 
the  line  thereof,  not  previously  known  to  exist,  discovered 
in  such  tunnel,  to  the  same  extent  as  if  discovered  from  the 
surface;  and  locations  on  the  line  of  such  tunnel  of  veins 
or  lodes  not  appearing  on  the  surface,  made  by  other  parties 
after  the  commencement  of  the  tunnel,  and  while  the  same 
is  being  prosecuted  with  reasonable  diligence,  shall  be  in- 
valid ;  but  failure  to  prosecute  the  work  on  the  tunnel  for 
six  months,  shall  be  considered  as  an  abandonment  of  the 
right  to  all  undiscovered  veins  on  the  line  of  such  tunnel. 

"Claims  usually  called  'placers'  including  all  forms  of 
deposit  excepting  veins  of  quartz,  or  other  rock  in  place, 
shall  be  subject  to  entry  and  patent,  under  like  circum- 
stances and  conditions,  and  upon  similar  proceedings,  as  are 
provided  for  vein  or  lode  claims ;  but  where  the  lands  have 
been  previously  surveyed  by  the  United  States,  the  entry 
in  its  exterior  limits  shall  conform  to  the  legal  subdivisions 
of  the  public  lands. 


242  putney's  bar  examination  review 

'"Legal  subdivisions  of  forty  acres  may  be  subdivided  into 
ten-acre  tracts;  and  two  oi"  more  persons,  or  associations  of 
persons,  having  contiguous  cbiims  of  any  size,  although  such 
claims  may  be  less  than  ten  acres  each,  may  make  joint 
entry  thereof;  but  no  location  of  a  placer-claim  made  after 
the  ninth  day  of  July,  eighteen  hundred  and  seventy,  shall 
exceed  one  hundred  and  sixty  acres  for  any  one  person  oi 
association  of  persons,  which  location  shall  conform  to  the 
United  States  surveys ;  and  nothing  in  this  section  contained 
shall  defeat  or  impair  any  bona  fide  pre-emption  or  home- 
stead claim  upon  agricultural  lands,  or  authorize  the  sale 
of  the  improvements  of  any  bona  fide  settler  to  any  pur- 
chaser. 

"Where  placer-claims  are  upon  surveyed  lands,  and  con- 
form to  legal  subdivisions,  no  further  survey  or  plat  shall 
be  required,  and  all  placer-mining  claims  located  after  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two,  shall 
conform  as  near  as  practicable  with  the  United  States  sys- 
tem of  pul)lic  land  surveys,  and  the  rectangular  subdivis- 
ions of  such  surveys,  and  no  such  location  shall  include  more 
than  twenty  acres  for  each  individual  claimant;  but  where 
placer-claims  cannot  be  conformed  to  legal  subdivisions, 
survey  and  plat  shall  be  made  as  on  unsurveyed  lands ;  and 
where  by  the  segregation  of  mineral  land  in  any  legal  sub- 
division a  quantity  of  agricultural  land  less  than  forty  acres 
remains,  such  fractional  portion  of  agricultural  land  may  be 
entered  by  any  party  qualified  by  law,  for  homestead  or 
pre-emption  purposes." 

' '  Every  person  above  the  age  of  twenty-one  years  who  is 
a  citizen  of  the  United  States,  or  who  has  declared  his  in- 
tention to  become  such,  or  any  association  or  persons  sever- 
ally qualified  as  above,  shall,  upon  application  to  the  reg- 
ister of  the  proper  land  office,  have  the  right  to  enter,  by 
legal  subdivisions,  any  quantity  of  vacant  coal  lands  of  the 
United  States  not  otherwise  appropriated  or  reserved  by 
competent  authority,  not  exceeding  one  hundred  and  sixty 
acres  to  such  individual  person,  or  three  hundred  and  twen- 
ty acres  to  such  association,  upon  payment  to  the  receiver 


MINING    LAW  243 

of  not  less  than  ten  dollars  per  acre  for  such  lands  where 
the  same  shall  be  situated  more  than  fifteen  miles  from  any- 
completed  railroad,  and  not  less  than  twenty  dollars  per 
acre  for  such  lands  as  shall  be  within  fifteen  miles  of  such 
road. 

"Any  person  or  association  of  persons  severally  qualified 
as  above  provided,  who  have  opened  and  improved,  or  shall 
hereafter  open  and  improve,  any  coal  mine  or  mines  upon 
the  public  lands,  and  shall  be  entitled  to  a  preference-right 
of  entry,  under  the  preceding  section,  of  the  mines  so 
opened  and  improved;  Provided,  That  when  any  associa- 
tion of  not  less  than  four  persons,  severally  qualified  as 
above  provided,  shall  have  expended  not  less  than  five 
thousand  dollars  in  working  and  improving  any  such  mine 
or  mines,  such  association  may  enter  not  exceeding  six  hun- 
dred and  forty  acres,  including  such  mining  improvements. 

"All  claims  under  the  preceding  section  must  be  pre- 
sented within  sixty  days  after  the  date  of  actual  possession 
and  the  eommencemeut  of  improvements  on  the  land,  to  the 
register  of  the  proper  land  distiict.  by  the  filing  of  a  declara- 
tory statement  therefor;  but  when  the  township  plat  is  not 
on  file  at  the  date  of  such  improvement,  filing  must  be 
made  within  sixty  days  from  the  receipt  of  such  plat  at  the 
district  office ;  and  where  the  improvements  shall  have  been 
made  prior  to  the  expiration  of  three  months  from  the  third 
day  of  March,  eighteen  hundred  and  seventy- three,  sixty 
days  from  the  expiration  of  such  three  months  shall  be  al- 
lowed for  the  filing  of  a  declaratory  statement,  and  no  sale 
under  the  provisions  of  this  section  shall  be  allowed  until 
the  expiration  of  six  months  from  the  third  day  of  ]\Iarch, 
eighteen  hundred  and  seventy-three. 

"The  three  preceding  sections  shall  be  held  to  authorize 
only  one  entry  by  the  same  person  or  association  of  per- 
sons; and  no  association  of  persons  any  member  of  which 
shall  have  taken  the  benefit  of  such  sections,  either  as  an 
individual  or  as  a  member  of  any  other  association,  shall 
enter  or  hold  any  other  lands  under  the  provisions  thereof; 
and  no  member  of  anv  association  which  shall  have  taken 


244  putney's  bak  examination  review 

the  benefit  of  such  sections  shall  enter  or  hold  any  other 
lands  under  their  provisions ;  and  all  persons  claiming  under 
section  twenty-three  hundred  and  forty-eight  shall  be  re- 
quired to  prove  their  respective  rights  and  pay  for  the  lands 
filed  upon  within  one  year  from  the  time  prescribed  for  fil- 
ing their  respective  claims;  and  upon  failure  to  file  the 
property  notice,  or  to  pay  for  the  land  within  the  required 
period,  the  same  shall  be  subject  to  entry  by  any  other 
qualified  applicant." 

In  the  location  of  a  claim  of  any  kind  the  following  must 
be  used: 

(1)  The  location  notice  at  discovery; 

(2)  The  discovery  shaft;  and 
(8)     The  boundary  stakes. 

The  necessity  of  recording  a  location  is  determined  by  the 
statutes  of  the  several  states. 

Mining  Patents. 

By  location,  the  location  only  secures  an  estate  in  the 
property  located  as  long  as  the  required  yearly  Avork  is 
done  thereon.  A  complete  title  is  only  acquired  by  a 
patent. 

The  obtaining  of  patents  for  mining  claims  is  regulated 
by  the  Federal  statutes  as  follows : 

''A  patent  for  any  land  claimed  and  located  for  valuable 
deposits  may  be  obtained  in  the  folloAving  manner:  Any 
person,  association,  or  corporation  authorized  to  locate  a 
claim  under  this  chapter,  having  claimed  and  located  a  piece 
of  land  for  such  purposes,  who  has,  or  have,  complied  with 
the  terms  of  this  chapter,  may  file  in  the  proper  land-office 
an  application  for  a  patent,  under  oath,  showing  such  com- 
pliance, together  with  a  plat  and  field-notes  of  the  claim  or 
claims  in  common,  made  by  or  under  +he  direction  of  the 
United  States  surveyor-general  showing  accurately  the 
boundaries  of  the  claim  or  claims,  which  shall  be  distinctly 
marked  by  monuments  on  the  ground,  and  shall  post  a  copy 
of  such  plat,  together  with  a  notice  of  such  application  for 
a  patent,  in  a  conspicuous  place,  on  the  land  embraced  in 


MINING    LAW  245 

such  plat  previous  to  the  filing  of  the  application  for  a 
patent,  and  shall  file  an  affidavit  of  at  least  two  persons  that 
such  notice  has  been  duly  posted,  and  shall  file  a  copy  of 
the  notice  in  such  land-office,  upon  the  filing  of  such  applica- 
tion, plat,  field-notes,  notices,  and  affidavits,  shall  publish  a 
notice  that  such  application  has  been  made,  for  the  period 
of  sixty  days,  in  a  newspaper  to  be  by  him  designated  as 
published  nearest  to  such  claim ;  and  he  shall  also  post  such 
notice  in  his  office  for  the  same  period.  The  claimant  at 
the  time  of  the  filing  of  this  application,  or  at  any  time 
thereafter  within  the  sixty  days  of  publication,  shall  file 
with  the  register  a  certificate  of  the  United  States  surveyor- 
general  that  five  hundred  dollars'  worth  of  labor  has  been 
expended  on  improvements  made  upon  the  claim  by  himself 
or  grantors ;  that  the  plat  is  correct,  with  such  further  de- 
scription by  such  reference  to  natural  objects  or  permanent 
monuments  as  shall  identify  the  claim,  and  furnish  an  ac- 
curate description,  to  be  incorporated  in  the  patent.  At 
the  expiration  of  the  sixty  days  of  publication  the  claimant 
shall  file  his  affidavit,  showing  that  the  plat  and  notice  have 
been  posted  in  a  conspicuous  place  on  the  claim  during  such 
period  of  publication.  If  no  adverse  claim  shall  have  been 
filed  with  the  register  and  the  receiver  of  the  proper  land- 
office,  at  the  expiration  of  the  sixty  days  of  publication,  it 
shall  be  assumed  that  the  applicant  is  entitled  to  a  patent, 
upon  the  payment  to  the  proper  office  of  five  dollars  per 
acre,  and  that  no  adverse  claim  exists;  and  thereafter  no 
objection  from  third  parties  to  the  issuance  of  a  patent  shall 
be  heard,  except  it  be  shown  that  the  applicant  has  failed 
to  comply  with  the  terms  of  this  chapter.  Pro\nded,  That 
the  claimant  for  a  patent  is  not  a  resident,  of  or  within  the 
land  district  wherein  the  vein,  lode,  ledge,  or  deposit  sought 
to  be  patented  is  located,  the  application  for  patent  and 
affidavits  required  to  be  made  in  this  section  by  the  claimant 
for  such  patent  may  be  made  by  his,  her  or  its  authorized 
agent,  where  said  agent  is  conversant  with  the  facts  sought 
to  be  established  by  said  affidavits ;  and.  Provided ;  that  this 
section  shall  apply  to  all  applications  now  pending  for  patents 


246  putney's  bar  examinatkjn  review 

to  mineral  lands."'     (United  States  Kevised  Statutes,   Sec- 
tion 2325.) 

Extra-Lateral  Rights  and  Cross  Veins. 

The  extra-lateral  lights  of  a  location  !ia\('  been  sum- 
marized by  the  Supreme  Court  ol"  the  TnittHl  States  as 
follows : 

"First,  the  location  as  made  on  the  surface  by  the  locator 
determines  the  extent  of  rights  below  the  surface.  Second, 
the  end  lines,  as  he  marks  them  on  the  surface,  with  the 
single  exception  hereinafter  noticed,  place  the  limits  beyond 
which  he  may  not  go  in  the  appropriation  of  any  vein  or 
veins  along  their  course  or  strike.  Third,  every  vein,  the 
top  or  apex  of  which  lies  inside  of  such  surface  lines  ex- 
tended downward  vertically  becomes  his  by  virtue  of  his 
location,  and  he  may  pursue  it  to  any  depth  beyond  his 
vertical  side  lines,  although  in  so  doing,  he  enters  beneath 
the  surface  of  some  other  proprietor.  Fourth,  the  only  ex- 
ception to  the  rule  that  the  end  lines  of  the  location  as  the 
locator  places  them  establish  the  limits  beyond  which  he 
may  not  go  in  the  appropriation  of  a  vein  on  its  course  or 
strike  is  where  it  is  developed  that  in  fact  the  location  has 
been  placed  not  along,  but  across  the  course  of  the  vein." 
(Del  Monte  Min.,  etc.,  Co.  vs.  Last  Chance  Min.  Co.,  171 
U.  S.,  89.) 

When  two  or  more  veins  intersect  the  owner  of  the  vein 
first  located  shall  be  entitled  to  the  mineral  within  the  space 
of  intersection.  Beyond  the  point  of  intersection,  each  owner 
is  again  entitled  to  his  own  vein. 

Forfeiture  of  Claims. 

Claims  are  forfeited  by  a  failure  to  perform  the  required 
annual  labor  thereon.  The  statutory  provisions  on  this 
point  are  as  follows:  "On  each  claim  located  after  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two,  and 
until  a  patent  has  been  issued  therefor,  not  less-  than  one 
hundred  dollars'  worth  of  labor  shall  be  performed  or  im- 
provements made  during  each  year.     On  all  claims  located 


MINING    LAW  247 

prior  to  the  tenth  day  of  -May,  eighteen  hundred  and  sev- 
enty-two, ten  dollars'  worth  of  labor  shall  be  performed  or 
improvements  made  by  the  first  day  of  January,  eighteen 
hundred  and  seventy-five,  and  each  year  thereafter,  for  each 
one  hundred  feet  in  length  along  the  vein  until  a  patent 
has  been  issued  therefor;  but  where  such  claims  are  held  in 
common,  such  expenditure  may  be  made  upon  any  one 
claim ;  and  upon  a  failure  to  comply  Avith  these  conditions, 
the  claim  or  mine  upon  which  such  failure  occurred  shall 
be  open  to  relocation  in  the  same  manner  as  if  no  location 
of  the  same  had  ever  been  made,  provided  that  the  original 
locators,  their  heirs,  assigns,  or  legal  representatives,  have 
not  resumed  work  upon  the  claim  after  failure  and  before 
such  location.    Sec.  5  A.  C,  IMay  10,  1872. 

"Section  2.  That  section  twenty-three  hundred  and 
twenty-four  of  the  Revised  Statutes  of  the  United  States, 
be  amended  by  adding  the  following  words:  'Provided,  that 
the  period  within  which  the  work  required  to  be  done  an- 
nually on  all  unpatented  mineral  claims  shall  commence  on 
the  first  day  of  January  succeeding  the  date  of  location  of 
such  claim,  and  this  section  shall  apply  to  all  claims  located 
since  the  tenth  day  of  May,  Anno  Domini,  eighteen  hundred 
and  seventy-two.    January  22,  1880." 

* '  Upon  the  failure  of  any  one  of  several  co-owners  to  con- 
tribute his  proportion  of  the  expenditures  required  hereby, 
the  co-owners  who  have  performed  the  labor  or  made  the 
improvements  may,  at  the  expiration  of  the  year,  give  such 
delinquent  co-owner  personal  notice  in  Meriting  or  notice  by 
publication  in  the  newspaper  pul)lished  nearest  the  claim, 
for  at  least  once  a  week  for  ninety  days,  and  if  at  the  ex- 
piration of  ninety  days  after  such  notice  in  writing  or  by 
publication  such  delinquent  should  fail  or  refuse  to  con- 
tribute his  proportion  of  the  expenditure  required  by  this 
section,  his  interest  in  the  claim  shall  become  the  property 
of  his  co-owners  who  have  made  the  required  expenditures." 


QUESTIONS  AND  ANSWERS 


TEST  CASES. 

(Note.  The  following  cases  are  each  based  upon  some 
actually  decided  case.  A  majority  of  the  cases  are  from 
the  decisions  of  American  Courts  rendered  during  the  last 
few  years.) 

1. 

A,  who  was  the  driver  of  a  w^agon,  was  driving  along 
the  street,  which  he  knew  to  be  in  a  torn-up  condition, 
lie  was  knocked  from  his  wagon  by  one  of  the  barrels  he 
was  hauling  and  which  projected  at  the  end  of  the  wagon, 
striking  against  an  electric  light  pole.  Can  he  recover 
from  the  village? 

2. 

Where  the  natural  course  of  water  through  the  domi- 
nant estate  is  from  a  ravine  to  a  basin  and  thence  through 
a  depression  in  the  rim  to  the  servient  estate,  may  the 
oAvner  of  the  dominant  estate  construct  a  ditch  on  his  own 
land  so  as  to  cut  out  the  basin  and  carry  the  water 
through  to  the  natural  outlet  upon  the  servient  estate  when 
debris  which  would  otherwise  have  been  carried  to  and 
remained  in  the  basin  is  thereby  cast  upon  the  servient 
estate  ? 

3. 

Is  a  person  who  uses  gas  for  heating  or  illuminating  pur- 
poses which  he  fraudulently  obtains  without  paying  there- 
for by  connecting  the  pipes  so  as  to  cut  out  the  meter, 
guilty  of  larceny?  If  so,  is  the  selling  price  of  the  gas,  or 
the  cost  of  manufacture  to  be  used  in  determining  whether 
the  crime  constituted  grand  or  petty  larceny? 

4. 

B  brings  suit  against  II  on  a  written  contract,  the  agree- 
ment of  which  had  been  substantially  performed,  nothing 
remaining  to  be  done  but  the  making  of  payment.  Can 
lecovery  be  had  in  this  case  under  the  common  counts? 

249 


2o0  putney's  bar  examination  review 


In  determining  whether  plaintiff's  intestate,  a  boy  of  ten 
years  old,  was  guilty  of  contributory  negligence  in  failing 
to  hear  and  get  out  of  the  way  of  the  wagon  which  ran 
over  and  killed  him,  may  the  jury  consider  his  age,  intelli- 
gence, experience  and  ability  to  comprehend  danger  and 
take  care  of  himself,  and  was  it  proper  to  deny  a  motion 
to  return  a  verdict  for  the  defendant  based  on  the  ground 
that  such  failure  was  contributory  negligence  as  a  matter 
of  law? 

6. 

"When  a  party  attempts  to  flag  a  street  car  in  order  to 
prevent  a  collision  with  a  fire  engine,  which  collision  in 
fact  occurred  almost  immediately  after  such  'attempt,  is 
a  remark  made  by  the  motorman  of  the  car  to  such  party 
just  before  the  collision  took  place,  admissible  as  part  of 
the  res  gestae? 

7. 

A.  while  insane,  borrows  money  of  B,  B  had  no  actual 
notice  of  A's  insanity,  but  prior  to  the  making  of  the  loan 
notice  of  such  insanity  had  been  given  to  C  an  attorney 
at  law  and  the  husband  of  B.    Is  such  notice  binding  on  C? 


A,  who  is  being  examined  as  to  his  competency  to  act  as 
a  juror  in  a  certain  case,  states  that  he  has  formed  an 
opinion  and  that  it  will  require  evidence  to  change  his 
opinion.    Is  this  sufficient  ground  for  cliallenging  the  juror? 

9. 
A  engages  B  to  work  for  him  as  a  bookkeeper.  B  at  the 
time  of  his  employment  agrees  that  if  he  leaves  the  employ- 
ment of  A  for  any  cause,  he  will  never  enter  the  employ 
of  any  firm  engaged  in  the  liquor  business  in  the  same  state 
where  A's  business  is  located.  While  in  A's  employ,  B 
learns  from  whom  A  buys  and  to  whom  he  sells,  and  then 
leaves  A's  employ,  going  to  work  for  a  rival  liquor  firm, 
located  in  the  same  state.     A  brings  suit  for  an  injunction 


TEST    CASES  251 

to  prevent  B  working  for  said  firni.     Should  the  injunction 
be  issued' 

10. 
In  the  trial  of  a  will  case,  one  of  the  witnesses  had  been 
in  California  at  the  time  of  the  death  of  the  testator  who 
died  in  New  York.     He  was  asked  if  the  testator  did  not 
commit  suicide.     AY  as  the  question  admissible? 

11. 
The  grandmother  of  a  young  man  made  a  contract  with 
the  father  of  the  young  man  by  which  she  agreed  that  if 
the  father  would  deposit  the  sum  of  $1,200  to  be  used  in 
payment  for  his  board  and  room  in  a  certain  educational 
institution,  she  would  pay  from  time  to  time  as  needed  for 
the  tuition  and  books,  and  clothing  of  the  young  man  dur- 
ing the  time  that  he  should  attend  such  institution,  and 
that  in  case  of  her  death  prior  to  the  time  that  the  young 
man  should  have  finished  his  course,  her  heirs  and  execu- 
tors should  carry  out  her  part  of  such  contract.  The  con- 
tract contemplated  a  four  years'  course,  but  it  was  found 
soon  after  the  young  man  entered  the  school  that  he  would 
be  unable  to  finish  his  course  in  less  than  five  years.  The 
grandmother  died  at  the  end  of  three  years.  Was  her 
estate  liable  for  the  expenses  of  the  young  man  in  the 
school  for  one  year  or  two  years  additionally? 

12. 

Of  what  crime  is  a  traveling  salesman  guilty,  who,  hav- 
ing charge  of  a  branch  of  his  employer's  business,  permits 
an  article  in  his  custody  by  virtue  of  his  employment,  to 
be  removed  by  another  traveling  salesman,  and  subsequently 
accepts  from  the  latter  the  money  acquired  from  the  sale 
thereof,  for  the  purpose  of  its  being  transmitted  to  their 
common  employer,  and  who  then  applied  the  money  to  his 
own  use? 

18. 

Does  the  publication  in  a  paper  of  a  statement  that  a  cer- 
tain contractor  has  been  placed  upon  the  "unfair  list"  of 


252  putney's  bar  examination  review 

a  carpenters'  union,  together  with  a  statement  that  the 
publication  of  such  notice  will  be  continued  until  he  has 
decided  to  set  himself  square  with  organized  labor,  con- 
stitute a  libel? 

14. 

A  contract  under  seal  concerning  the  disposition  of  an 
estate,  provided,  viz.:  "I,  the  said  C.  S,,  do  hereby  cove- 
nant and  agree  to  and  with  the  said  C.  S.  and  to  and  with 
such  person  that  if  there  be  a  wife  of  the  said  G.  S.  at 
the  time  of  his  decease,  that  after  the  said  G.  S.  shall  die 
in  my  life  time  leaving  a  widow  still  living,  I  will,  from  and 
after  the  decease  of  said  G.  S.  and  during  my  life  time,  pay 
over  to  such  person  as  may  be  the  widow  of  G.  S.  one-third 
of  the  entire  income  aforesaid  to  which  I  may  be  entitled 
as  such  survivor."  Can  the  widow  of  G.  S.  maintain  an 
action  on  this  contract? 

15. 

A  brother  and  sister  convej^ed  the  premises  upon  which 
thc}'-  were  living,  and  together  took  back  a  mortgage  with 
condition  to  support  them  during  their  lives,  according  to 
a  bond,  providing  what  rooms  they  should  occupy;  that 
they  should  have  proper  food,  medicine,  clothing,  nursing, 
etc.,  fuel  for  each  of  them  prepared  and  housed,  and  board 
of  a  horse  for  their  use;  that  the  grantee  should  build  ad- 
ditions to  their  house,  which  he  did,  at  considerable  ex- 
pense; and  he  should  not  dispose  of  the  house  during  their 
lives.  Were  the  brother  and  sister  entitled  to  support  any 
where  else  than  in  said  house? 

16. 

In  an  action  on  a  contract  for  labor  performed,  signed 
by  defendant's  son,  it  appeared  that  defendant  was  old  and 
confined  to  his  house ;  that  he  was  also  rich  and  the  owner 
of  the  property. on  which  the  work  was  done;  that  before 
it  was  done  he  signed  an  application  for  a  permit  to  do  it ; 
that  the  son  had  no  property ;  that  he  told  his  father  of  the 
contract  with  defendant,  and  conferred  with  him  about  the 
work,  and  told  him  of  its  progress;  that  he  was  his  father's 


TEST   CASES  253 

only  son,  and  general  business  agent;  and  that  the  defend- 
ant had  in  mind  the  work  in  question,  and  consulted  with 
his  wife  about  it.  Were  the  jury  justified  in  finding  that 
the  defendant  was  the  principal  in  the  contract? 

17 

The  banking  firm  of  M  &  Son  had  been  for  a  long  time 
acting  as  plaintiff's  financial  agents.  M  died,  and  his  sons 
H  &  E  continued  the  business  in  the  name  of  M's  Sons,  and 
II  became  plaintiff's  treasurer.  His  firm  continued  to  act 
as  plaintiff's  financial  agents,  keeping  his  transfer  books, 
paying  all  stock  dividends,  and  frequently  making  advan- 
ces to  it.  The  account  of  the  firm's  books  was  kept  in  the 
name  of  the  plaintiff  and  on  plaintiff's  books  in  the  name  of 
M's  Sons.  Plaintiff  kept  no  account  in  the  name  of  II  as 
treasurer.  Remittances  Avere  at  the  time  made  to  his  order 
but  afterwards  at  his  request  they  were  sent  direct  to  the 
order  of  the  firm.  The  annual  reports  distributed  to  plain- 
tiff's stockholders,  stated  the  funds  now  in  the  hands  of  the 
firm,  but  gave  no  statement  showing  funds  in  the  hands  of 
H  as  treasurer.  IM's  Sons  failed  owing  the  plaintiff  a  large 
sum.  Can  the  firm  hold  II  personally  responsible  for  the 
loss? 

18 

Defendant's  employer  who  had  testified  to  defendant's 
good  character,  was  asked  by  the  latter 's  counsel  whether 
he  had  made  inquiries  as  to  defendant  before  engaging 
him  and  whether  he  had  any  fault  to  find  with  him.  The 
court  excluded  the  question.    Was  this  action  proper? 

19. 
In  action  for  personal  injuries  caused  by  the  bite  of  a 
dog,  the  question  of  defect  of  parties  was  not  raised  either 
by  demurrer  or  answer.     Can  such  defect  be  taken  advan- 
tage of  in  an  appeal? 

20. 
Is  a  note  which  provides  in  case  of  collection  through  at- 
torney or  by  legal  proceedings  for  payment  of  costs  and 
expenses  without  specifying  expenses,  negotiable? 


254  I'UTXKV'S    15AK    EXAMINATION    UEVIEW 

21. 

B,  a  policy  holder  in  a  life  insurauee  company  has  volun- 
tarily ceased  payment  and  abiindoned  his  policy,  can  he 
maintain  an  action  for  damages  for  the  eancellation  of  such 

policy? 

22. 

An  accommodation  iiulorscr  of  a  promissory  note  eij>:ht- 
een  months  after  its  maturity,  with  knowledge  that  there 
had  been  no  demand  of  payment  or  notice  of  dishonor,  and 
without  receiving  a  consideration,  indorses  on  the  note  the 
words  "I  hereby  waive  protest  or  demand  of  i)ayment."  Is 
such  indorser  liable  on  a  suit  thereafter  brought  against 
him  on  the  note? 

23. 

When  a  surety,  for  his  own  protection,  pays  off  the  debt 
for  which  he  is  lial>le,  but  does  so  in  form  of  a  purchase, 
taking  an  assignment  of  the  securities  to  himself,  having 
in  mind,  however,  only  the  better  protection  of  his  rights 
of  su])rogation  and  contribution.  Is  the  transaction  equivalent 
to  a  payment  for  the  piii-posc  of  accpiiriiig  such  rights? 

24. 
The  defendant  had  gone  on  the  bond  of  the  cashier  of  the 
Savings  Bank  as  his  surety  ;  the  cashier  being  elected  for  a 
certain  definite  term.  After  the  expiration  of  the  term,  no 
new  bond  was  given,  and  afterwards  the  cashier  stole  a  part 
of  the  funds  of  the  bank.  Suit  is  brought  against  the  defend- 
ant on  the  bond  which  he  signed.    Is  he  liable  thereon? 

25. 
Complainant's  bill  states  the  following  case: — On  Sep- 
tember 6,  1904  the  defendant  Company  issued  to  the  com- 
plainant a  policy  containing  among  other  things  the  follow- 
ing provisions:  "The  National  Fire  Insurance  Company  of 
Hartford,  Conn,  in  consideration  of  the  stipulations  herein 
named,  and  of  Nineteen  Dollars  and  Thirty-Eight  Cents 
premium  to  insure  Hall  and  Hawkins  for  the  term  of  one 
year  from  September  G,  1904  at  noon  to  September  6.  1905 


TEST    CASES  255 

at  noun,  against  all  direct  loss  or  damage  by  fire  except  as 
herein  provided,  to  an  amount  not  exceeding  $1,000  on  the 
rolh)\ving  described  property,  locatetl  and  contained  as  de- 
seril)c'd  herein  (describe  property).  This  Company  shall 
not  be  liable  for  loss  occasioned  directly  or  indirectly  by 
invasion,  insurrection,  riot,  civil  war,  or  commotive  or  mili- 
tary, or  usurped  power,  or  by  order  of  any  civil  authority 
or  by  theft,  or  by  neglect  of  the  insured  to  use  or  reason- 
able means  to  save  and  preserve  the  property  in  and  after 
a  lire,  on  when  the  property  is  endangered  l>y  fire  in  neigh- 
boring pre  noises,  or  (unless  fire  ensues,  and  in  that  event 
for  the  damage  by  fire  only)  by  explosion,  or  any  kind  of 
lightning ;  but  liability  for  direct  damages  by  lightning  may 
be  assumed  by  specific  performance  hereon."  On  Novem- 
ber 12th,  1904,  the  property  insured  was  partly  destroyed 
through  an  explosion  which  occurred  in  a  fire  in  the  neigh- 
borhood.     Can   tlie   plaintiff   recover   on    his   policy? 

26. 
"Where  a  manufacturing  firm  has  in  its  service  a  large 
number  of  workmen  and  it  is  the  duty  of  the  book-keeper 
aided  by  the  foreman  to  ascertain  what  work  is  done,  and 
for  whom  done,  and  to  enter  it  daily  in  the  books,  are  such 
books  competent  evidence  of  the  items  charged  in  them 
when  supplemented  by  testimony  of  the  foreman  as  to  what 
workmen  worked  and  by  some  members  of  the  firm  as  to 
correctness  of  the  charges  and  by  testimony  of  person.s  who 
had  made  settlements  with  the  firm  of  accounts  on  their 
])ooks  that  such  accounts  were  correct? 

27. 

Plaintiff's  bill  prayed  an  injunction  against  the  removal 
of  a  bridge,  Avhich  constituted  part  of  a  highway  running 
through  his  farm  on  both  sides  of  the  stream.  The  bridge 
and  the  road  had  been  re-located  and  the  road  abandoned. 
The  bill  was  framed  on  the  theory  that  it  was  defendant's 
duty  as  highway  commissioners  to  keep  the  bridge  in  re- 
pair.     Could   plaintiff'  olaim   relief  on   the   ground   that   as 


256  putney's  bar  examination  review 

al)utting  owner  he  had  rights  in  the  highway  that  could  not 
be  taken  from  him  without  compensation'^ 

28. 
An  agent  of  an  insurance  company  is  intrusted  with 
check  and  receipts  for  the  purpose  of  settling  a  death 
claim;  are  the  declarations  and  admissions  made  by  the 
agent  as  part  of  the  res  gestae  in  closing  up  the  transac- 
tion, binding  upon  the  company? 

29. 
A  is  a  sAvitch  tender  ni  a  certain  railway  yards  and  B  is  a 
member  of  the  crew  of  a  switching  engine  in  the  same  yards. 
A  and  B,  however,  are  employed  by  different  roads.     Are 
A  and  B  fellow  servants? 

30. 
The  question  at  issue  in  a  suit  for  personal  injuries  was 
whether  the  plaintiff  used  ordinary  care  in  putting  his  hand 
under  the  blade  of  a  slat  cutting  machine  in  a  window  mill 
factory  to  remove  slats  or  slivers  instead  of  going  back  of 
the  machine  to  remove  them.  In  this  case  the  court  ad- 
mitted testimony  to  the  effect  that  there  were  certain  posts 
back  of  the  machine  which  made  it  difficult  to  remove  the 
slats  from  behind.    "Was  it  error  to  admit  this  testimony? 

31. 
The  laws  of  Georgia  provide  that  the  husband  or  wife 
of  any  person  who  is  sentenced  to  the  penitentiary  for  two 
years  or  longer  shall  have  the  right  to  obtain  a  divorce 
on  such  ground.  A's  husband  w^as  sentenced  to  the  peni- 
tentiary for  a  longer  period  than  two  years,  but  was  par- 
doned by  the  governor.  Did  the  pardon  by  the  governor 
take  away  from  A  the  right  to  a  divorce? 

32. 
An   artist   brings   suit   for   the   wrongful   breaking   of   a 
glass   picture    painted    by    him.      He    claims    damages    not 


TEST   CASES  257 

only  for  the  market  value  of  the  picture,  but  also  for  the 
special  value  which  he  claimed  it  had  to  him.  Is  he  enti- 
tled to  recover  for  such  damages? 

33. 

The  plaintiff  sues  for  personal  injuries.  The  personal 
injuries  received  necessitated  the  amputation  of  his  legs. 
This  amputation  aggravated  a  previously  existing  ailment. 
Can  this  aggravation  of  the  previous  ailment  be  considered 
in  determining  the  damages? 

34. 
The  plaintiff  in  error  operated  a  bath-house  in  the  city 
of  Lincoln,  having  among  its  other  attractions  a  plunge 
bath.  In  the  office  where  tickets  are  sold  there  was  a  sys- 
tem of  drawers  or  boxes  in  charge  of  an  attendant  who 
presents  one  of  them  to  any  patron  having  valuables  about 
his  person,  in  which  the  valuables  are  deposited,  the  box 
returned  to  its  proper  place,  and  locked,  and  the  key  given 
to  the  patron.  After  taking  his  bath,  the  visitor  returned 
the  key  to  the  attendant,  who  unlocked  and  presented  the 
drawer  to  the  visitor,  who  in  this  way  regained  possession 
of  such  valuables  as  he  may  have  deposited.  On  the  evening 
of  July  21st,  1900,  Allen,  the  defendant  in  error,  visited 
the  bath-house  in  company  with  one  Chase  for  the  purpose 
of  getting  a  bath.  On  purchasing  tickets,  the  attendant 
presented  a  box  to  each  of  them  in  which  they  deposited 
their  valuables,  receiving  the  keys  to  their  respective 
boxes,  passed  into  the  bathroom,  where  they  disrobed  and 
afterwards  enjoyed  their  bath  in  the  plunge.  Allen  testi- 
fied that  he  placed  the  key  given  to  him  in  his  coat  pocket, 
and  that  on  returning  to  his  dressing  room  he  noticed  that 
his  clothing  had  been  disarranged  by  some  one  during 
his  absence  in  the  bath  and  his  key  was  missing.  He  im- 
mediately notified  the  attendant  from  whom  he  had  re- 
ceived the  key  and  was  told  his  property  could  not  be  re- 
turned until  the  managing  officer  opened  the  boxes.  The 
next  morning  he  called  at  the  bath-house  and  had  a  talk 


258  putney's  hah  kxamix aiiox  hkvikw 

with  the  manager,  "who  told  him  that  his  key  had  been 
turned  in  and  that  his  property  was  gone;  tliat  detectives 
had  been  employed;  ami  reipiested  him  to  call  again  a  day 
or  two  later.  The  second  day  thereafter  Allen  again  called 
up  the  manager  and  was  told  that  nothing  further  had  been 
learned,  and  on  Allen's  demand  to  be  paid  the  value  ot 
the  property,  payment  was  refused.  This  action  was  there- 
upon  commenced  to  recover  the  value  of  the  deposit  which 
in  his  petition  Allen  alleges  there  was  a  gold  watch  of  the 
value  of  $45.00  and  currency  to  the  amount  of  $116.00. 
To  what  class  of  bailees  did  the  Bath  Company  belong,  and 
for  what  degree  of  negligence  was  it  liable? 

35. 
A  purchases  goods  in  the  name  of  a  corporation  which 
in  fact  has  no  existence,  giving  therefor  the  note  of  the 
supposed  corporation,  signed  in  its  name,  and  his  own  name 
as  Treasurer.  What  is  the  proper  course  of  action  to  be 
taken  by  the  seller  upon  discovering  the  non-existence  of 
the  supposed  corporation  ? 

36. 
Will  the  following  words  Avritten  concerning  the  robbery 
of  a  safe  containing  county  funds  constitute  li1)el:  "Turn 
your  searchlight  on  your  ti-easurer  and  the  man  that  boards 
with  him  and  the  postmaster,  and  you  will  lind  where  the 
money  went?" 

37. 
In  a  certain  case,  one  of  the  instructions  given  by  the 
court  was  as  follows:  '"In  this  case  damages  are  claimed  by 
plaintiff  on  account  of  injuries  done  to  his  land  through 
the  seepage  of  water  from  the  ditch  of  the  defendant  owing 
to  its  negligent  and  defective  construction  and  mainte- 
nance. Before  you  can  find  for  the  plaintiff  in  this  case, 
the  fact  must  be  established  by  a  clear  preponderance  of 
the  evidence  that  the  ditch  in  question  was  defectively  con- 
structed or  negligently  maintained,  and  that  through  such 
defective   construction  or  negligent  maintaining  the   seep- 


TE!5T    CASES  259 

age  occurred  from  which  it  is  claimed  the  injury  resulted, 
and  unless  the  plaintiff  has  established  this  fact  by  a  clear 
preponderance  of  the  evidence  the  verdict  should  be  for 
the  defendant.'"  Was  this  instruction  proper  or  improper? 
If  improper,  in  what  respect  f 

38. 

In  an  accidenr  case  the  defendant  attempted  to  introduce 
as  a  part  of  his  defense  a  declaration  or  statement  made 
by  one  Mansel  13augh,  a  chikl  of  six  years  of  age,  after  the 
accident.  The  declaration  made  by  the  child  and  the  cir- 
cumstances under  whic'li  it  was  made  were  as  follows :  J. 
M.  Baugh,  the  father  of  the  boy,  was  in  the  store  at  the 
time  accompanied  by  the  wife  and  the  child.  Jack  Ma- 
loney,  a  salesman  in  the  store,  testified  that  he  was  near 
the  elevator  shaft  on  the  first  floor  and  heard  groans  or 
cries  of  pain  down  the  shaft ;  that  just  as  he  heard  the 
groans  the  little  boy  came  nmning  to  him  from  in  front  of 
the  elevator  door  and  said  to  witness:  "A  man  came  up 
and  pushed  open  the  door  and  walked  in."  He  stated 
that  the  child  appeared  to  be  greatly  excited  an'd  that  he 
(witness)  immediately  went  down  to  the  bottom  of  the 
shaft  in  the  basement  and  found  appellee  in  the  injured 
condition.  The  court  excluded  the  statement  of  the  wit- 
ness concerning  the  declaration  made  to  him  by  the  child. 
Appellant  also  offered  to  prove  by  ]Mr.  Baugh  that  the  boy 
ran  to  him  from  the  elevator  apparently  much  excited  and 
pulled  him  down  and  said:  ''Papa,  a  man  pushed  the  door 
of  the  elevator  open  and  walked  in."  This  was  excluded 
by  the  court.  "Was  such  exclusion  of  this  evidence  correct 
or  incorrect .' 

39. 

The  plaintiff  "S"  gave  to  "W"  $2,500  to  be  used  for  an 
illegal  purpose.  *'W"  expended  part  of  such  money  as 
the  agent  of  "S,"  and  then  refused  to  return  the  unex- 
pended balance  to  "S, "  alleging  the  illegality  of  the  pur- 
pose for  which  the  money  was  to  be  used,  as  a  defense. 
Was  this  defense  a  good  one? 


200  putney's    bar    examination    UEVIENV 

40. 
A  sheriff  pursuant  to  an  order  of  court  paid  the  amount 
of  a  fine  and  costs  for  -which  he  had  taken  a  note  with  a 
surety  not  conforming  to  statutory  requirements,  but  valid 
as  a  common  law  obligation.  The  sheriff  failed  to  sue  the 
principal  on  the  note  or  to  present  the  claim  against  the 
principal's  estate  when  the  latter  went  tiirough  bank- 
ruptcy.   AVas  the  surety  discharged? 

A  surety  note  bearing  twenty  signatures  is  put  afloat 
before  maturity  and  passes  into  the  lumds  of  a  bona  lide 
holder.  Some  of  the  signatures  are  genuine  and  some  are 
forged.  May  the  bona  fide  hohler  recover  against  the  per- 
sons who  actually  signed  the  note! 

42. 

A  policy  of  life  insurance  containing  a  stipulation  cx- 
cei)ting  liability  on  the  policy  '"if  death  is  caused  or  super- 
induced at  the  hands  of  justice  or  in  viohition  of,  or  at- 
tempt to,  violate  any  criminal  law,"  and  the  insured  is 
slain  by  a  husband  either  while  attempting  to  have  sexual 
intercourse  with  the  wife  or  immediately  after  the  com- 
pletion of  the  act.  Can  there  be  a  recovery  on  this  insur- 
ance  policy? 

43. 

A  father  has  his  daughter  made  the  beneficiary  of  certain 
insurance  certificates  without  surrendering  control  or  pos- 
session of  the  same  and  declares  his  intention  either  at  the 
same  time  or  afterwards  that  she  shall  share  the  proceeds 
of  such  certificates  with  another  named  person,  and  the 
daughter  assents  to  such  declaration.  Does  this  create  a 
trust  in  favor  of  such  third  person  which  a  court  of  equity 
will  enforce? 

44. 

The  bill  in  equity  in  substance  sought  a  mandatory  in- 
junction to  prevent  the  defendants,  who  were  a  colliery 
company,   from   erecting  or  working   any   coke    ovens    or 


TEST   CASES  261 

other  ovens  to  the  nuisance  of  the  pLaintiff,  the  nuisance 
alleged  being  from  smoke  and  deleterious  vapors.  The 
plaintiit*  Avas  tenant  for  life  of  a  mansion-house  and  about 
485  acres  of  land  called  Burnhall,  situated  in  the  county  of 
Durham,  having  ni  the  neighborhood  and  on  all  sides  of 
his  estate  many  collieries,  some  of  which  have  been  worked 
for  thirty  or  forty  years.  The  defendants  had  in  1870 
opened  or  enlarged  a  coal  pit  called  the  Littleburn  Col- 
liery 400  yards  from  one  of  the  plaintiff's  plantations  and 
1,000  yards  from  his  mansion-house  and  had  erected  his 
coke  ovens,  increasing  by  degrees  to  the  number  of  254. 
These  works  in  fact  intersected  the  lands  of  the  plaintiff, 
and  the  plaintiff  in  February,  1873,  filed  the  bill  in  this 
suit  to  restrain  the  defendants  from  allowing  any  effluvia 
to  issue  from  their  works  so  as  to  occasion  nuisance  to  the 
plaintiff  or  diminish  the  value  of  his  estate.  The  defendants 
alleged  that  their  works  did  no  real  injury  to  the  woods  or 
lands  of  the  plaintiff";  and  that  there  were  already  so  many 
collieries  and  coke-works  in  the  neighborhood  (the  nearest 
being  half  a  mile  off)  that  the  colliery  and  coke  ovens 
erected  by  the  defendants  made  no  perceptible  addition  to 
the  smoke.     Should  the  injunction  be  granted? 

45. 

In  the  case  of  Penn  vs.  Lord  Baltimore,  a  bill  was  brought 
in  the  English  courts  for  the  specific  performance  and  exe- 
cution of  the  articles  of  a  contract.  The  bill  was  founded 
on  articles  entered  into  between  the  plaintiffs  and  defendant 
10  ]\Iay,  1732,  which  articles  recited  several  matters  as 
introductory  to  the  stipulations  between  the  parties  and 
particularly  letters  patent  20  June  2  C.  I.,  by  which  the 
district  property  and  government  of  IMaryland  under  cer- 
tain restrictions  is  granted  to  defendant's  ancestor,  his 
heirs  and  assigns ;  suit  reciting  charters  or  letters  patent 
in  1681  by  which  the  province  of  Pennsylvania  is  granted 
to  Mr.  William  Penn  and  his  heirs;  and  stated  a  title  to 
the  plaintiffs  derived  from  James,  Duke  of  York,  to  the 
three  lower  counties  by  common  feoffments  brought,  bear- 


262  putney's  hah  kxamixatiox  ukvikw 

ing  date  24  August,  1682,  the  ai-ticles  recite  that  several 
eontroversies  had  been  between  the  parties  concerning  the 
boundaries  and  limits  of  ccrtair!  \\\o  provinces  and  three 
lower  counties  and  making  pai't  ])i'ovision  and  settling 
them  by  drawing  part  of  a  circle  al)out  the  town  of  New- 
castle and  a  line  to  ascertain  the  boundaries  between  Mary- 
land and  the  three  lower  counties,  and  a  provision  in  what- 
ever manner  that  circle  and  line  sliould  run  and  be  drawn ; 
and  that  commissioners  slnndd  do  it  in  a  certain  limited 
time,  the  final  time  for  which  Avas  on  or  before  25  December, 
1733.  Objection  was  made  to  the  jurisdiction  of  the  court. 
Should  this  objection  be  sustained? 

46. 

The  Act  of  July  1,  1002.  establishing  the  civil  government 
of  the  Philippine  Islands,  provided  that  the  courts  which 
had  existed  under  the  Spanish  rule  should  continue  in  ex- 
istence and  should  retain  their  previous  jurisdiction,  ex- 
cept as  this  was  changed  l)y  the  provisions  of  the  present 
act.  This  Act  also  contained  a  Bill  of  Rights  for  the  Philip- 
pines, one  of  the  provisions  of  w^hich  provided  that  no  per- 
son should  be  put  twice  in  jeopardy  for  the  same  offense. 
The  Spanish  law  had  prohibited  double  jeopardy  but  had 
not  held  that  a  person  was  put  twice  in  jeopardy  through 
an  appeal  (which  was  always  allowed)  by  the  Government 
from  a  judgment  of  acquittal  in  a  criminal  case.  "K"  was 
acquitted  of  a  certain  charge  in  a  lower  court  of  the  Phil- 
ippine Islands,  whereupon  the  Government  appealed  to 
the  Supreme  Court  of  the  Philippine  Islands  by  which 
court  "K"  was  convicted.  From  this  conviction  ''K"  ap- 
pealed to  the  Supreme  Court  of  the  United  States  on  the 
ground  that  he  had  been  put  twnce  in  jeopardy.  What 
action  should  the  Supreme  Court  of  the  United  States 
take  ? 

47. 

A  person  accused  of  a  criminal  offense  pleaded  guilty 
and  then  took  out  a  writ  of  error  on  account  of  defects 
appearing  on  the  record.     Is  such  proceeding  permissible? 


TEiST    CASES  263 

48. 
The  Constitution  of  Louisiana  contains  a  provision  pro- 
hibiting marriage  between  white  persons  and  persons  hav- 
ing one-eighth  or  more  negro  blood.  No  statute  has  ever 
been  passed  to  carry  such  provision  into  effect.  Should 
this  constitutional  provision  be  held  to  be  self-executing? 

49. 

Plaintiffs'  father  left  small  legacies  to  them  and  gave 
the  bulk  of  his  property  to  his  wife  in  trust  for  the  benefit 
of  his  minor  children.  Nothing  was  ever  done  under  the 
Avill  and  the  widow  and  children  lived  together  as  one 
family,  the  former  being  recognized  as  the  head  and  with 
the  children's  consent  managing  and  controlling  all  her  hus- 
band's estate.  The  business  left  by  him  was  continued  by 
the  family,  each  child  aiding  therein  when  old  enough. 
There  Avas  no  agreement  as  to  board  and  lodging  and  all 
Avere  supported  from  the  business.  Plaintiffs,  two  of  the 
daughters,  worked  partly  at  the  store  and  partly  at  home 
until  they  were  married,  on  the  understanding  that  they 
should  derive  pecuniary  profit  from  the  successful  conduct 
of  the  business.  The  profits  of  the  business  not  needed  for 
support  were  invested  and  the  estate  increased  greatly  in 
value  after  the  father's  death.  Should  the  mother  be  held 
to  be  a  trustee  of  the  property  purchased  with  the  profits 
of  the  business? 

50. 

The  legislature  of  ^Massachusetts  passed  an  act  providing 
for  the  abolition  of  grade  crossings  and  retjuiring  the  cost 
of  changes  made  to  be  paid  by  the  town,  the  railroad  com- 
pany and  the  state  in  proportions  fixed  without  reference 
to  the  value  of  the  property  owned  by  them  or  the  benefits 
which  they  severally  receive.  Is  such  a  laAv  valid;  if  so, 
for  what  reason? 

51. 

A  paragraph  of  a  complaint  in  an  action  for  damages  on 
the  ground  of  fraud  in  procuring  a  deed  of  land  from  a 
father  to  his  son  proceeds  on  the  theory  that  the  grantor 


264  PUTNEY'ji    BAK    1::X.\M1NAT10X    REVIEW 

at  the  time  the  deed  was  executed  was,  by  reason  of  age 
and  infirmity,  of  unsound  mind,  but  states  no  facts  showing 
such  unsoundness  of  mind,  AVhat  action  should  the  de- 
fendant take? 

52. 
The  original  bill  asserted  ownership  of  property  held  by 
the  plaintiff's  father.  At  the  time  of  his  death  a  part  of 
this  property  consisted  of  land  acquired  by  the  father  un- 
der a  deed,  which  was  set  forth  in  the  bill  as  the  source  of 
the  father's  title,  and  as  the  foundation  of  the  plaint  iff" 's 
claim.  A  cross-bill  was  filed  by  one  of  the  defendants  re- 
lying on  the  same  deed  and  asking  that  a  certain  trust 
created  by  the  deed  should  be  declared  and  established. 
Was  this  cross-bill  germane  to  the  original  bill? 

53. 

The  object  of  a  supplemental  bill  was  to  show  that  cer- 
tain liens  which  while  they  existed  were  obstacles  to  the 
granting  of  the  full  relief  sought  in  the  bill  had  been  re- 
moved since  the  filing  of  the  original  bill.  Was  this  sup- 
plemental bill  properly  filed? 

54. 
A  railroad  mortgage  gave  the  trustee  of  the  bondholder 
the  option  of  either  a  strict  foreclosure  or  a  sale  at  public 
auction.  The  bill  prayed  for  a  strict  foreclosure,  but  under 
the  prayer  for  general  relief  the  plaintiffs  were  permitted  to 
take  a  decree  directing  a  foreclosure  sale.  Was  this  sub- 
stitution of  remedies  proper? 

55. 
A  bill  which  was  passed  by  Congress  passed  the  House  of 
Representatives  as  follows :  A  majority  of  the  members  of 
the  House  were  present,  but  less  than  a  majority  of  the 
whole  membership  voted.  A  majority  of  those  voting  voted 
yes.    Was  this  bill  legally  passed? 

56. 
A  statute  of  Illinois  requires  every  railroad  company  in- 
corporated or  doing  business  in  the  state  to  make  certain 


TEST   CASES  2G5 

reports  to  the  railroad  commission.  Is  this  statute  in  vio- 
lation of  the  Commerce  Clause  of  the  United  States  Con- 
stitution? 

57. 
A  statute  of  the  State  of  Missouri  relative  to  the  for- 
feiture of  life  insurance  policies  for  immaterial  false  war- 
ranties having  been  construed  by  the  Supreme  Court  of  that 
state;  a  case  involving  this  statute  comes  before  a  Federal 
Court.  Is  such  court  bound  by  the  construction  given  to 
it  by  the  Supreme  Court  of  ^Missouri? 

58. 

Where,  in  an  action  to  construe  a  will,  it  appears  that 
a  charitable  association  named  as  a  legatee  does  not  exist, 
may  extrinsic  evidence  be  introduced  to  show  that  name 
was  inserted  inadvertently  and  that  testator  intended  that 
bequest  should  go  to  an  existing  association  having  a  some- 
what similar  name? 

59. 

Where  testator  devises  to  his  five  daughters,  naming 
them,  "the  undivided  one-fifth"  of  specified  tract  of  land, 
and  provides  for  disposition  of  daughter's  share  in  event 
of  her  predecease,  what  share  does  each  daughter  take? 

60. 
This  is  an  action  of  tort  for  slanderous  words  alleged 
to  have  been  spoken  by  the  defendant  concerning  the  plain- 
tiff. The  original  declaration  was  in  the  English  language. 
During  the  trial  it  appeared  that  the  words  spoken  were 
in  the  Italian  language,  and  the  counsel  for  the  plaintiff 
stated  that  the  alleged  slanderous  words  had  been  spoken 
in  Italian,  and  that  he  did  not  contend  that  they  were 
spoken  in  English.  The  judge  then  suggested  that  if  that 
were  so  there  was  a  variance  between  the  allegations  and 
the  proof.  The  plaintiff  asked  for  leave  to  amend  by  set- 
ting forth  the  words  spoken  in  Italian  and  the  judge  inti- 
mated that  such  amendment  would  be  permitted.  The  trial 
proceeded  as  before  through  an  interpreter.     At  the  close 


266  putney's  bak  examination  review 

of  the  evidence  for  the  phiintitf  an  amended  declaration 
was  filed  setting  forth  the  words  spoken  in  Italian  with 
their  meaning  in  English.  The  j)laintiff  then  rested.  The 
counsel  for  the  defendant  then  asked  the  judge  to  rule 
that  there  was  no  evidence  that  the  foreign  words  set  forth 
in  the  amended  declaration  were  spoken  by  the  defendant 
and  further  that  there  was  no  evidence  as  to  the  meaning 
of  such  foreign  words,  and  requested  the  judge  to  rule 
that  the  action  could  not  be  maintained.  The  judge  so 
ruled.  A  verdict  was  accordingly  returned  for  the  defend- 
ant and  the  case  is  taken  up  on  the  plaintiff's  exception  to 
this  ruling.  Should  the  exceptions  be  sustained  or  over- 
ruled ? 

61. 
The  plaintiff  after  having  been  hired  to  work  for  the  de- 
fendant for  a  period  of  five  months  was  discharged  after 
two  months,  on  account  of  his  refusal  to  work  on  Sundays. 
The  plaintiff  brought  suit  on  this  contract  and  the  defend- 
ant pleaded  the  general  issue.  On  the  trial  the  defendant 
introduced  evidence  of  a  custom  of  the  trade  in  the  place 
where  the  plaintiff  was  employed  that  all  persons  in  that 
line  of  employment  should  work  on  Sunday.  Was  such  evi- 
dence properly  admissible? 

G2. 
Tn  a  common  law  case  one  of  the  parties  introduced  what 
purported  to  be  a  copy  of  an  original  instrument  in  the 
possession  of  the  opposite  party.  Counsel  stated  that  no- 
tice to  produce  the  original  document  had  been  served 
upon  the  possessor  of  the  instrument.  AVas  such  purported 
copy  properly  admissible? 

63. 

Tn  an  action  for  malicious  prosecution,  the  defendant  tes- 
tified in  the  course  of  his  evidence  that  he  commenced  the 
criminal  proceedings  for  the  purpose  of  enforcing  the  pay- 
ment of  a  debt.  The  court  instructed  the  jury  that  this 
was  prima  facie  evidence  of  want  of  probable  cause  and 
malice.     Was  such  instruction  correct? 


TEST    CASES  267 


64. 
Bill  in  equity  by  Chenango  Bridge  Company  to  enjoin 
F>inghamton  Bridge  Company.     The  plaintiff  company  was 
chartered  by  Section  4  of  the  Act  of  1808  "for  the  pur- 
pose of  erecting  and  maintaining  a  toll-bridge  across  the 
Chenango  River,  at  or  near   Chenango  Point."     The  cor- 
poration was  "to  have  perpetual  succession  under  all  the 
provisions,  regulations  and  clauses  of  the  before  mentioned 
Susquehanna  Bridge  Comiyiny"   (referred  to  in  Section  3 
of  the  same  act  of  1808).     The  latter  company  was  incor- 
porated by  Section  38  of  the  Act  of  1805  which  gave  the 
Susquehanna  Bridge  Company  all  the  "powers,  rights,  priv- 
ileges, immunities  and  advantages"  contained  in  the  incor- 
poration of  the  Delaware  Bridge  Company  by  Section  31 
of  the  same  act  of  1805.     Said  Section  31  enacted:     "It 
shall  not  be  lawful  for  any  person  or  persons  to  erect  any 
bridge  or  establish  any  ferry  across  the  said  west  and  east 
branches  of  the  Delaware  River  within  two   miles  either 
above  or  below  the  bridges  to  be  erected  and  maintained  in 
pursuance  of  this  act."    Soon  after  the  passage  of  this  Act 
of  1808   the  plaintiff  company  built  a  toll-bridge  across  the 
Chenango  River  at  Chenango  Point.     In  1855  the  legisla- 
ture granted  to  the  Binghamton  Bridge  Company  permis- 
sion to  authorize  the  building  of  a  bridge  in  close  proximity 
to  that  of  the  plaintiff.    The  latter  company  built  a  bridge 
a  few  rods  above  the  old  one.     The  old  company  filed  a 
bill  in  the  Supreme  Court  of  New  York  to  enjoin  the  new 
company     The  plaintiff  contended  that  the  exclusive  rights 
given  by  Section  31  of  the  Act  of  1805  to  the  Delaware 
Bridge  Company  were  imported  by  Section  38  of  the  Act 
into  the  charter  of  the  Susquehanna  Company ;  that  these 
within  those  imported  were  translated   into   Section  3  of 
the  Act  of  1808;  and  that  these  last  were  carried  finally 
into  Section  4  of  the  latter  act ;  thus  making  a  contract  by 
the  state  with  the  Chenango  Bridge  Company  that  no  bridge 
should  ever  be  built  over  the  Chenango  River  within  two 
miles  of  their  bridge  either  above  or  below  it.     Should  the 
injunction  be  granted? 


268  putney's  bar  i:\ami\atiu.v  heview 

65. 

Action  to  recover  for  certain  onions  sold  by  an  oral  con- 
tract. Plaintiff  went  to  Boston  and  saw  one  of  the  de- 
fendants who  were  doing  business  as  Chapin  Brothers, 
Plaintiff  told  them  what  kind  of  onions  he  had  and  they 
agreed  to  take  729  bushels  if  the  onions  were  of  the  size 
and  quality  the  plaintiff  said  they  were.  Plaintiff'  was  to 
put  the  onions  in  a  car  at  North  Amherst,  ^lass.,  the  car 
to  be  furnished  by  defendants.  Defendants  sent  a  ear  to 
North  Amherst,  and  plaintiff'  loaded  the  onions,  and  the 
car  was  taken  by  the  railway  company  to  Boston,  The 
defendants  refused  to  take  the  onions,  contending  that 
they  were  not  of  the  size  and  quality  guaranteed  by  the 
plaintiff.  Is  the  question  raised  one  for  the  court  or  the 
jury? 

66. 

A  is  induced  to  enter  into  a  contract  of  partnership  by 
the  misrepresentation  of  B,  Afterwards  A  discovers  the 
fraud,  and  comes  to  you  for  advice.  What  remedies  has 
he? 

67. 

P,  a  minoritj^  stockholder  in  a  corporation,  brought  a 
bill  in  equity  to  set  aside  a  sale  of  the  corporation  property 
to  one  II.  The  property  was  purchased  by  II,  who  was 
the  highest  bidder  at  a  public  sale  which  was  authorized 
by  resolutions  passed  at  a  meeting  of  the  stockholders. 
Of  the  3931/4  shares  voted  in  the  affirmative  II  voted  in 
his  own  right  1171/2  shares  and  also  voted  as  a  proxy  on 
180  shares.  No  actual  fraud  was  shown.  Should  the  sale 
be  set  aside? 

68. 

A  partner  borrowed  money  on  his  individual  credit  for 
the  use  of  his  partnership  and  gave  his  note  with  a  surety 
therefor.  On  his  death  his  wife  as  his  heir  assumed  his  in- 
terest as  an  equal  partner  with  his  surviving  partner.  A 
bills  receivable  book  was  opened  and  this  note  entered  into 
it.  In  the  course  of  various  changes  in  the  firm  during 
which  the  wife  sold  out,  interest  on  the  note  was  paid,  in 


TEST    CASES  269 

each  ehang'e  there  was  a  stipulation  that  as  part  consid- 
eration as  between  the  newly  constituted  firm  and  the  out- 
going members  the  new  firm  should  assume  the  debts  and 
liabilities  of  the  late  firm  including  the  note.  Can  the 
widow  recover  on  the  note  against  the  members  of  the  firm 
at  the  time  the  suit  was  brought? 

69. 

A  is  a  student  in  a  medical  college  which  refuses  to  give 

him    his   diploma   after   he    has    completed   the    prescribed 

course.     He  brings  a  petition  of  mandamus  to  compel  them 

to  issue  his  diploma  to  him.    Should  the  petition  be  granted? 

70. 
Where  two  persons  oAvning  different  stores  form  a  co- 
partnership and  each  contributes  the  stock  he  has  and  pro- 
ceed to  open  a  partnership  in  which  the  money  derived  from 
the  sale  of  the  goods  is  deposited  and  afterwards  on  disagree- 
ing one  buys  the  other  out  paying  for  his  interest  considering 
all  stock  valued  at  $1,600  upon  which  there  was  owing  only 
$125.  Is  there  sufficient  evidence  to  support  a  finding  that 
the  partnership  assumed  the  debts  of  the  individual  partners 
owing  at  the  time  of  its  formation? 

71. 
A  and  B  make  a  contract  in  the  State  of  Indiana,  by 
which  A  is  to  work  for  B.  A  works  for  B  in  Indiana  and 
is  injured  in  that  state,  but  sues  B  in  Illinois.  The  laws 
of  which  state  will  determine  the  question  of  the  liability 
of  the  defendant  for  the  injury  received? 

72. 
Where  an  antenuptial  agreement  provides  that  the  wife 
shall  in  case  of  the  husband's  death  have  only  $200.00  a 
year  during  her  widowhood  and  the  use  of  half  of  the 
house  and  lot,  and  the  husband's  estate  consists  of  per- 
sonalty worth  $10,000  and  land  worth  $12,500,  is  the  pro- 
vision  for  the  wife  so   disproportionate   to   the   husband's 


270  putney's  bar  examinatiun  review 

means  that  the  agreement  cannot  bo  sustained,  in  the  ab- 
sence of  clear  proof  that  it  was  fairly  entered  into  with  full 
knowledge  on  the  part  of  the  wife  of  the  extent  of  the 
husband's   property? 

73. 
Defendants  agreed  to  buy,  and  plaintiffs  agreed  to  sell 
4,000  barrels  to  be  delivered  to  defendants'  mill  by  Jan- 
uary 1st.  It  was  further  agreed  that  defendants  should 
buy  of  plaintiffs  all  the  barrels  that  they  should  use  for 
one  year  from  the  date  of  the  contract.  The  plaintiffs  had 
a  quantity  of  barrels  ready  for  delivery,  though  after  Jan- 
uary ]st,  but  before  tender  at  the  place  agreed  on  were 
notified  ])y  defendants  not  to  deliver  them.  What  is  the 
measure  of  the  plaintift"s  damages? 

74. 

A  marries  a  widow  B  who  has  a  child  C.  A  takes  C  into 
his  home  and  stands  in  loco  pai'cntis  toAvards  him.  Can  A 
recover  from  B  for  necessaries  furnished  C? 

75. 

A  and  B  are  residents  of  a  state,  the  laws  of  which  pro- 
hibit their  marriage  with  each  other  on  the  ground  of  pub- 
lic policy.  They  go  into  another  state  where  their  mar- 
riage is  permitted  and  are  there  married,  after  which  they 
return  to  their  former  state.     Is  such  marriage  valid? 

76. 

A  is  the  oAvner  of  certain  real  property  and  gives  a  deed 
of  such  property  to  B.  The  deed  is  not  recorded.  B  later 
gives  the  deed  back  to  A.  Does  this  transfer  the  legal  title 
again  to  A? 

77. 

Suit  was  brought  to  set  aside  a  will  on  the  ground  of 
undue  influence.  The  following  evidence  w^as  introduced 
in  support  of  such  contention :  First,  that  a  codicil  was 
added  to  the  will  for  the  sole  purpose  of  giving  the  attor- 
ney for  the  testatrix  certain  articles — the  articles  Averc  of 


TEST   CASES  271 

little  value  except  as  souvenirs,  and  the  attorney  was  not 
a  beneficiary  under  the  original  will;  second,  that  the  tes- 
tatrix and  a  woman  friend  of  hers  were  spiritualists  and 
that  the  latter  sought  to  induce  the  testatrix  to  have  the 
will  executed  privately  in  the  absence  of  her  husband. 
Was  this  evidence  sufficient  to  prove  undue  influence  I 

78. 
Is  a  bill  for  specific  performance  of  a  contract  for  the 
sale  of  land  defective  in  failing  to  allege  complainant's 
performance  of  a  condition  precedent  where  facts  are  al- 
leged showing  a  waiver  of  such  condition  for  a  period  of 
thirty  days  to  enable  the  defendant  to  furnish  a  proper 
abstract  of  title  and  an  offer  to  perform  such  condition  be- 
fore the  expiration  of  such  period  ? 

79. 
A  is  the  bailee  of  certain  personal  property  under  a 
contract  made,  while  the  goods  were  in  his  possession,  with 
the  agent  of  an  undisclosed  principal.  The  undisclosed 
principal  is  a  minor  who  demands  the  goods  from  A  before 
the  termination  of  the  period  for  which  the  bailment  was 
to  continue  under  the  terms  of  the  contract  and  upon  the 
refusal  of  A  to  deliver  the  goods  brings  against  him  for 
damages.     Should  there  be  a  recovery  in  this  suit? 

80. 

A  fraudulently  obtains  goods  from  B,  and  transfers  them 
to  C  in  payment  of  a  pre-existing  debt.  C  has  no  knowl- 
edge of  the  manner  in  which  the  goods  were  obtained. 
Can  B  recover  the  goods,  or  damages  for  their  conversion, 
from  C? 

81. 

A,  a  merchant,  provides  no  place  for  keeping  the  wraps 
of  his  customers,  and  does  not  notify  the  customers  to  look 
out  for  their  wraps  themselves,  nor  does  he  give  any  direc- 
tions to  his  clerks  on  the  subject.  B,  a  customer,  while 
trying  on  a  cloak,  lays  her  wraps  on  the  counter,  and  they 
are  lost.     May  B  recover  damages  from  A? 


272  putney's  bar  examination  review 

82. 
In  an  action  of  replevin  to  recover  certain  mirrors  in  a 
hotel  known  as  the  "Park  House"  in  Summit,  the  plaintiff 
claimed  them  as  personal  property,  of  the  defendant  as 
owner  of  the  real  estate.  Both  the  real  estate  and  the 
mirrors  at  one  time  belonged  to  Lyons;  Ilicks  was  her 
tenant,  hiring  the  personal  property  and  renting  the  real 
estate.  In  1898  Lyons  conveyed  the  personal  property  in- 
cluding the  mirrors  in  question  to  Hicks  by  a  bill  of  sale. 
Subsequently  Cheseburgh  bought  the  real  estate  and  leased 
it  to  Hicks.  At  that  time  Hicks  gave  Cheseburgh  a  chattel 
mortgage  conveying  the  mirrors  and  other  personal  prop- 
erty to  Chesel)urgh  to  secure  a  loan.  Hicks  was  then  in 
possession  of  the  hotel  and  the  personal  property  as  tenant 
under  Cheseburgh.  After  Cheseburgh 's  death  Hicks  con- 
veyed the  personal  property  in  the  hotel  to  the  present 
plaintiff  by  a  bill  of  sale  which  does  not  specifically  men- 
tion the  mirrors,  but  after  specifying  a  large  amount  of 
personal  property  conveys  all  the  other  goods  and  chattels 
and  other  personal  property  of  every  kind  contained  in 
the  building.  The  situation  then  was  that  Cranston  as 
executor  claimed  title  under  the  bill  of  sale  to  the  mirrors 
as  personal  property.  While  he  had  this  title  he  conveyed 
the  real  estate  as  executor  of  Cheseburgh  to  the  defendant. 
Nothing  was  said  by  either  the  plaintiff  or  the  defendant 
at  the  time  of  the  conveyance  about  the  mirrors.  The  mir- 
rors were  of  French  plate  glass,  some  of  them  resting  on 
mantels  supported  at  the  top  by  iron  spikes  driven  into 
the  wall ;  the  spikes  were  flattened  at  one  end  and  through 
a  hole  in  the  end  screws  were  driven  into  the  mirror  frames 
to  hold  the  mirrors.  Some  of  the  mirrors  rested  on  slabs 
supported  by  brackets.  All  of  them  rested  against  the 
wall,  and  the  frames  were  painted  in  the  same  style  as  the 
woodwork  of  the  room  in  which  the  mirrors  were.  Should 
the  action  of  replevin  be  sustained? 

83. 
A  contract  or  lease  for  five  years  of  a  lot  and  building 
thereon  for  a  certain  price  payable  in  monthly  installments. 


TEST    CASES  2/o 

contains  a  stipulation  giving  the  lessee  the  right  to  pur- 
chase the  property  at  a  fixed  price  at  any  time  during  the 
continuation  of  the  lease.  Was  there  any  consideration 
for  this  right  to  purchase? 

84. 
A  is  the  vendor  of  the  lots  in  a  certain  sub-division. 
Certain  building  restrictions  are  placed  upon  each  of  the 
lots.  A  sells  one  lot  to  B,  and  another  to  C.  A  gives  B 
permission  to  disregard  the  building  restrictions,  but  upon 
C's  disregarding  such  restrictions  A  seeks  an  injunction 
against  C.     Should  this  injunction  be  granted? 

85. 
A  carrier  contracted  with  the  purchaser  to  transport 
certain  iron  as  evidenced  by  a  letter  from  the  purchaser 
to  the  carrier,  accompanied  by  an  order  to  the  seller  to 
deliver  the  iron.  The  carrier  loaded  the  iron  on  a  canal 
boat  and  delivered  to  the  seller  a  bill  of  lading  for  the 
purchaser  which  modified  the  carrier's  liability  under  the 
original  contract.  On  the  same  day,  by  the  sinking  of  the 
boat,  the  iron  was  lost.  Can  the  carrier  defend  under  the 
bill  of  lading  against  a  recovery  of  the  value  of  the  iron 
by  the  purchaser  in  the  absence  of  evidence  of  the  course 
of  business  between  the  parties,  or  of  a  custom  sanctioning 
such  an  interpretation  of  the  original  contract? 

86. 
Plaintiff  intending  to  take  passage  from  N.  to  C.  pur- 
chased a  ticket  which  by  mistake  read  from  C.  to  N.  About 
four  months  afterward  defendant's  conductor  refused  to 
receive  it  for  plaintiff's  fare  from  X.  to  C.  Has  the  plain- 
tiff a  right  of  action  against  the  Company? 

87. 

The  defendant's  horses,  which  were  being  driven  by  his 

servant,  ran  away,  and  became  so  unmanageable  that  the 

servant  could  not   stop  them,   but   could,  to   some  extent, 

guide  them.     The  defendant,  who   sat  beside  his  servant. 


274  putney's  bar  examination  review 

was  requested  by  him  not  to  interfere  with  the  driving 
and  complied.  While  unsuccessfully  trying  to  turn  a  cor- 
ner safely,  the  servant  guided  them  so  that,  without  his 
intending  it,  they  knocked  down  and  injured  the  plaintiff, 
who  was  in  the  highway.  The  jury  found  that  there  was 
no  negligence  in  any  one.     Was  the  defendant  liable? 

88. 

The  defendant,  an  aeronaut,  went  up  in  a  balloon  and 
came  down,  contrary  to  his  wishes  and  in  spite  of  his  ef- 
forts to  prevent  it,  in  the  plaintiff's  garden,  thereby  com- 
mitting a  trespass.  A  crowd  of  people  rushed  in,  partly 
to  extricate  him  and  partly  from  curiosity.  The  result 
was  that  the  plaintiff's  vegetables  and  flowers  Avere  trodden 
down.  Was  the  aerial  navigator  chargeable  with  the  dam- 
age done  by  the  crowd? 

89. 

A  landlord  wrongfully  dispossessed  a  tenant  and  de- 
molished a  stable  built  by  the  latter.  In  an  action  for 
damages  the  tenant  claimed  that  he  kept  a  roll  of  money 
in  the  feed  box  of  the  sta])le  and  that  this  was  lost  as 
a  result  of  the  demolition  of  the  stable.  Was  the  defend- 
ant, as  trespasser,  liable  for  the  loss  of  the  money,  if  plain- 
tiff's story  was  believed? 

90. 

The  defendant  bought  a  horse  at  Tattersall's  and  upon 
taking  the  animal  out  to  try  it,  it  became  unmanageable 
and  swerved  from  the  roadway  to  the  pavement.  A  pedes- 
trian was  there  struck  and  fatally  injured.  It  did  not  ap- 
pear that  the  defendant  had  omitted  to  do  anything  he 
could  have  done  to  prevent  the  accident.  The  plaintiff  in- 
sisted that  the  mere  fact  that  the  defendant  had  brought 
into  a  public  place  a  horse  with  whose  temper  he  was  not 
acquainted  w-as  evidence  of  negligence.  But  the  court  was 
of  the  opinion  that  a  man  is  not  to  be  charged  with  want 
of  due  caution  merely  because  he  rides  a  horse  whose  quali- 
ties he  does  not  happen  to  know.  Was  the  charge  by  the 
court  correct? 


TEST    CASES  ZVO 

91. 

The  plaintiff's  intestate,  a  passenger  on  the  defendant's 
railway,  was  killed  by  an  accidental  explosion  of  fireworks 
Avhich  a  fellow  passenger  had  brought  into  the  compart- 
ment in  which  the  deceased  was  traveling.  Suit  was 
brought  against  the  company  on  the  theory  that  it  was 
guilty  of  negligence  in  alloAving  the  combustibles  to  be 
brought  into  the  train.  There  was  nothing  to  show  that 
any  servant  of  the  company  knew  of  the  fact  that  the  ex- 
plosives were  being  brought  aboard  or  knowingly  suffered 
them  to  remain.  Nor  was  there  any  proof  to  show  that 
the  package  containing  them  was  calculated  to  excite  in- 
quiry as  to  its  contents.     Judgment  for  whom? 

92. 
The  authorities  of  the  City  of  London  were  authorized 
by  law  to  execute  certain  works  over  the  line  of  the  INIetro- 
l)olitan  Railway  Company.  In  carrying  out  their  plans  a 
girder  was  allowed  to  fall  upon  a  passing  train  and  the 
plaintiff,  a  passenger  on  the  train,  was  hurt.  The  work 
was  being  carried  on  by  an  independent  contractor  em- 
ployed by  the  City  of  London.  Was  the  mischief  in  c[ues- 
tion  one  which  the  railway  company  could  be  expected  to 
foresee  and  guard  against? 

93. 
A  house  van  attached  to  a  steam  plough  was  left  for  the 
night  on  the  grassy  side  of  a  highway  by  the  defendant. 
The  van  and  plough  were  four  or  five  feet  from  the  metalled 
part  of  the  way.  During  the  evening  the  plaintiff's  tes- 
tator drove  his  mare  in  a  cart  along  the  metalled  road. 
The  mare  was  a  kicker,  but  lie  Avas  unaware  of  her  vice. 
Passing  the  van  she  shied  at  it,  kicked  and  galloped,  kick- 
ing for  140  yards.  She  then  got  her  leg  over  the  shaft, 
fell,  and  kicked  her  driver  as  he  rolled  out  of  the  cart.  He 
afterward  died  from  the  kick  he  so  received.  In  an  action 
brought  by  the  personal  representative  against  the  defend- 
ant for  damages  resulting  from  the  obstruction  of  the  high- 


276  I'LT-NEVS    liAK    EXAMINATION    REVIEW 

^vay,  it  was  found  by  the  jury  that  the  leaving  of  the  van 
over  night  beside  the  highway  caused  an  appreciable  dan- 
ger to  vehicles  passing  that  way  and  that  the  defendant 
was  guilty  of  negligence  in  so  leaving  the  van.  It  was 
also  found  that  the  injury  complained  of  was  caused  by 
the  presence  of  the  van  combined  with  the  inherent  vice 
of  the  mare;  and  that  the  deceased  was  guilty  of  no  con- 
tributory negligence.    Should  the  plaintiff  recover? 

94. 

A  train  of  cars  loaded  with  petroleum  was  negligently 
permitted  to  get  from  under  control  of  the  crew.  Moving 
down  grade  of  its  own  momentum,  it  came  into  collision 
with  a  locomotive,  with  the  result  that  some  of  the  oil 
tanks  were  thrown  to  the  earth  and  burst.  The  oil  thus 
released  spread  over  the  roadbed  and  coming  into  contact 
with  coals  of  fire  from  the  locomotive  was  ignited.  The 
flaming  oil  trickled  down  the  embankment  to  a  brook  be- 
low and  was  carried  by  the  water  to  the  plaintiff's  barn 
which  stood  below  on  the  bank  of  the  stream.  AVas  the 
company  liable  for  the  damage  to  the  barn? 

95. 

A  canal  company,  which,  as  common  carrier,  had  under- 
taken to  convey  plaintiff's  goods,  negligently  started  the 
boat  on  its  voyage  with  a  lame  horse,  by  reason  of  wdiich 
the  transportation  of  the  goods  was  considerably  delayed. 
It  so  happened  that  when  the  boat  thus  delayed  was  at 
a  particular  point  on  its  way,  an  extraordinary  flood  oc- 
curred by  which  the  boat  was  wrecked  and  plaintiff's  goods 
lost.  But  for  the  delay  which  was  caused  by  the  lameness 
of  the  horse  as  aforesaid,  the  boat  would  have  escaped  the 
disaster.  Can  the  damage  in  this  case  be  attributed  to  the 
starting  of  the  boat  with  the  lame  horse  as  its  proximate 
or  legal  cause? 

96. 

The  defendant  company  wa-ongfully  ejected  the  plain- 
tiff",  a  passenger,  from  its  train.     Owing,  perhaps,  to  the 


TEST   CASES  277 

excitement,  occasioned  by  the  fact  that  he  was  being  so 
ejected,  the  plaintiff  forgot  his  race-glasses  and  left  them 
behind  on  the  train  so  that  they  were  lost.  He  could  have 
taken  the  property  with  him  if  he  had  thought  of  it. 
Could  the  loss  of  the  glasses  be  attributed  to  the  wrongful 
ejectment  as  its  proximate  cause,  and  was  the  company 
liable  for  their  value? 

97. 
By  the  negligence  of  A,  timber  was  insecurely  stacked 
near  a  street.  As  the  plaintiff  was  going  along  a  third 
person  negligently  drove  his  vehicle  against  a  protruding 
piece  and  caused  it  to  fall  upon  the  plaintiff.  Can  A's 
negligence  be  treated  as  the  legal  cause  of  the  hurt,  though 
the  negligence  of  the  stranger  also  contributed  to  the  ac- 
cident, and  was  indeed  the  immediate  occasion  of  it? 

98. 

The  plaintiff  declared  that  he  was  possessed  of  a  close 
adjoining  the  defendant's,  and  that  the  tenants  and  occu- 
piers of  that  close  had  time  out  of  mind  made  and  repaired 
the  fence  between  the  plaintiff's  and  defendant's  close,  and 
that  for  want  of  repair  defendant's  cattle  came  into  the 
plaintiff's  close  and  did  damage.  Which  action  is  proper, 
case  or  trespass? 

99. 

Tn  trespass  for  assault  and  battery  the  plaintiff  gave 
evidence  that  the  defendant  unlawfully  struck  him.  The 
trial  judge  charged  the  jury  that  the  plaintiff  could  re- 
cover for  all  the  direct  injurious  results  of  the  assault  and 
could  also  recover  for  the  insult  and  indignity  inflicted 
upon  him  by  reason  of  the  blow  given  him  by  the  defend- 
ant.    "Was  such  charge  proper? 

100. 

In  divorce  proceedings  the  plaintiff,  a  husband,   sought 

to  recover  damages  of  the  co-respondent  for  alienation  of 

the  wife's  affections  and  for  illicit  cohabitation  with  her. 

Sir  James  Hannen,  President,  in  charging  the  jury,  said: 


278  putney's    HAll    EXA.MIXATION    UKVIEW 

"You  must  remember  that  you  are  not  here  to  punish  at 
all.  Any  observations  directed  to  that  end  are  im])roperly 
addressed  to  you.  All  that  the  law  ])ermits  a  jury  to  give 
is  eompensation  for  the  loss  whieli  the  luisband  has  sus- 
tained. That  is  the  only  guide  to  the  amount  of  damages 
to  be  given.  But  undoubtedly,  if  it  is  proved  that  a  man 
had  led  a  happy  life  with  his  wife,  that  slie  has  taken  care 
of  his  children,  that  she  has  assisted  in  his  business,  and 
then  some  man  appears  upon  the  scene  and  seduces  the 
wife  aAvay  from  her  husband,  then  the  jury  will  take  those 
facts  into  consideration."     AVas  such  charge  proper? 

101. 
A —  in  marking  out  a  mining  claim,  makes  it  in  an  irreg- 
ular and  many  sided  shape.     Will  the  shape  of  his  claim 
affect  his  right  to  go  beyond  the  surface  lines  ? 

102. 
A  bill  passed  by  the  legislature  of  a  certain  state,  in- 
creased the  period  during  w^hich  appeals  in  certain  civil  cases 
might  be  taken.  This  law^  w'as  to  apply  to  cases  where  the 
right  of  appeal,  under  the  previous  law  had  already  expired. 
"Was  this  an  ex  post  facto  law^? 

103. 

In  a  suit  in  equity,  filed  for  the  purpose  of  securing 
the  setting  off  of  dower  and  homestead,  and  for  partition,  a 
certain  deed  is  sought  to  be  introduced  as  an  "ancient  docu- 
ment." This  deed  was  less  than  30  years  old  at  the  time  the 
suit  w^as  filed,  but  more  than  30  years  old  at  the  time  it  was 
offered  in  evidence.  Is  such  deed  admissible  as  an  ancient 
document  ? 

104. 

In  an  action  to  recover  damages  resulting  from  the 
fa'ilure  of  the  defendant  (a  railroad)  to  properly  perform 
their  contract  for  the  shipment  of  the  plaintiff's  live  stock, 
one  of  the  plaintiffs  was  allowed,  over  defendant's  objection, 
to  testify  from  the  market  reports  printed  in  a  trade  journal. 


TEST   CASES  279 

printed  and  published  where  the  stock  was  sold,  as  to  the 
market  price  of  hogs  and  cattle  during  the  period  of  delay  in 
the  shipment.     Was  such  evidence  properly  admitted? 

105. 
In  a  suit  against  a  railroad  company  for  personal  in- 
juries, the  company  set  up  in  defense  alleged  contributory 
negligence  of  the  plaintiff  consisting  in  jumping  from  the 
train.  The  plaintiff  asserts  that  he  was  justified  in  jumping 
on  account  of  the  imminent  danger  existing  at  the  time,  in 
proof  whereof  he  introduces  expressions  of  fear  uttered  by 
other  passengers  at  the  time.    Was  such  evidence  admissible  ? 

106. 
A  will  contains  a  devise  of  land  to  a  church  "^to  be 
used  as  a  parsonage  and  nothing  else,  and  to  be  kept  for  that 
purpose  and  used  for  nothing  else."  There  was  no  devise 
over.  For  a  period  of  two  years  the  house  is  not  occupied 
as  a  parsonage,  and  at  the  expiration  of  this  period,  the 
residuary  legatee  brings  an  action  of  ejectment  against  the 
church.     Is  he  entitled  to  recover? 

107. 

B — ,  who  was  tenant  for  life  without  impeachment  of 
waste,  began  to  pull  down  the  walls  of  the  house,  with  the 
intent  to  entirely  destroy  such  house.  The  remainder  man 
thereupon  seeks  an  injunction  against  B — .  Should  an  in- 
junction against  B —  be  granted,  and  if  so,  what  kind  of  an 
injunction? 

108. 

The  plaintiff  and  a  fellow  servant,  engaged  in  dump- 
ing acid  pots,  each  put  a  hook  into  a  lug  on  opposite  sides  of 
the  pot,  and  then  raised  it  by  a  windlass.  While  so  engaged, 
the  pot  dumped  over  by  reason  of  the  hook  placed  by  the  fel- 
low servant,  slipping  in  some  manner.  An  expert  consulting 
and  mechanical  engineer  was  permitted  to  testify  that  the 
hook  slipped  because  of  the  use  of  a  short  and  open-mouthed 
hook.     Was  the  admission  of  this  testimony  proper? 


280  putney's  bar  examination  review 

109. 
In  a  suit  against  a  railroad  company  it  was  shown  that 
the  defendant's  servants,  switching  out  a  caboose  with 
no  one  thereon,  permitted  it  to  be  kicked  on  a  down  grade 
track  to  a  switch  where  it  struck  an  engine,  killing  the  plain- 
tiff intestate  standing  by ;  that  it  was  customary  to  have  an 
employee  on  a  caboose  so  running  loose;  and,  that  a  brake- 
man  unsuccessfully  tried  to  catch  this  caboose.  Was  there 
sufficient  evidence  of  negligence  to  send  the  case  to  the  jury? 

110. 
A  publishing  firm  in  the  United  States  published  an 
encyclopedia  under  the  same  name  as  an  encyclopedia  i)ub- 
lished  in  England,  and  with  the  same  contents  except  for  cer- 
tain articles  copyrighted  in  this  country.  The  foreign  pub- 
lishers seek  an  injunction  against  the  American  publisher. 
Will  such  injunction  be  granted  ? 

111. 
A — ,  the  surety  for  a  debt,  after  the  debt  is  due,  files 
a  bill   in   equity   to   compel  B — ,   the   principal   debtor,   to 
pay  the  debt,  and  also  to  compel  C — ,  the  creditor,  to  receive 
payment.     Should  this  relief  be  granted? 

112. 
"Clement  HarM^ood,  seized  of  three  acres  of  land,  each 
of  equal  value,  held  in  capite,  made  a  feoffment  in  fee  of 
two  of  them  to  the  use  of  his  wife  for  her  life,  for  her  joint- 
ure, and  afterwards  made  a  feoffment  by  deed  of  the  third 
acre,  to  the  use  of  such  person  and  persons,  and  of  such  estate 
and  estates  as  he  should  limit  and  appoint  by  his  last  will  in 
writing,  and  afterwards  his  last  will  in  writing,  he  devised 
the  said  third  acre  to  one  in  fee  (under  w^hom  the  plaintiff 
claimed.)  And  whether  this  devise  was  good  for  all  the  said 
third  acre,  or  not,  or  for  two  parts  of  it,  or  void  for  the  whole, 
was  the  question." 


TEST   CASES  281 

113. 

"A  Tenant  for  life,  remainder  to  trustees  to  preserye, 
etc.  remainder  to  C.  the  plaintiff  in  tail,  remainder  over, 
with  power  for  A,  with  consent  of  trustees  to  fell  tim- 
ber, and  the  money  arising  to  be  invested  in  lands,  etc.  to 
same  uses  etc.  A.  felled  timber  to  the  value  of  3,000  £ 
without  consent  of  trustees,  who  never  intermeddled,  and  A. 
had  suffered  some  of  the  houses  to  go  out  of  repair.  C.  by 
bill  prayed  an  account  and  injunction."  What  action  should 
be  taken? 

114. 

A.  borrowed  money  and  executed  a  note  therefor  with- 
out the  joinder  or  knowledge  of  his  wife.  Later  the 
creditor  filed  a  suit  against  the  husband  alone  to  have  the  note 
declared  a  mortgage  on  certain  land  described  in  the  instru- 
ment, and  a  decree  was  entered  establishing  the  mortgage  and 
ordering  a  sale  thereunder.  The  husband  and  wife  there- 
upon, show  that  the  land  in  question  is  their  homestead  and 
seek  an  injunction  to  prevent  the  sale.  Should  the  injunction 
be  granted  .' 

115. 

A —  transfers  property  to  B — ,  conditioned  upon  B — 
furnishing  to  A — support  for  life.  Upon  a  failure  by  B — 
to  perform  his  agreement,  what  remedy  has  A- — ? 

116. 
A —  brings  suit  to  have  his  marriage  with  B —  annulled 
on  the  ground  of  fraud.  The  alleged  fraud  on  the  part 
of  B —  consisted  in  her  falsely  representing  to  A — .  prior 
to  the  marriage  that  she  (B)  was  entirely  cured  of  e])ilepsy, 
and  had  had  no  attack  of  it  in  eight  years.  Should  the  mar- 
riage be  annulled? 

117. 
A  passenger  on  a  railroad,  riding  on  a  free  pass  which 
stipulates  that  ^'the  person  accepting  this  pass  assumes 
all  risks  of  accidents  and  damages  without  claim  upon 
the  company,"  is  injured  through  the  negligence  of  the  com- 
pany.    Can  there  by  any  recovery  against  the  railroad? 


282  putney's  bar  examination  review 

118. 
A — ,  living  in  N.  Dakota,  where  the  sale  of  intoxicat- 
ing liquors  is  prohibited,  sent  an  order  for  liquors  to  a  linn 
in  Minnesota,  such  liquors  to  be  delivered  to  consignee, 
f.  0.  b.  cars  in  Minnesota.  May  the  purchase  price  be  sued  for 
and  recovered  in  N.  Dakota"? 

119. 
In  an  action   at  law   on  a  promissory  note  the  defend- 
ant sought  to  introduce  parol  evidence  to  show  that  the  rate 
of  interest  agreed  upon  was  different  from  that  specified  in 
the  note.    Was  this  evidence  admissible  ? 

120. 

A —  was  being  tried  on  an  indictment  for  maintaining 
a  nuisance,  which  consisted  of  a  piggery  containing  about 
five  hundred  pigs.  The  defendant  sought  to  introduce  evi- 
dence that  such  establishments  were  customary  throughout 
the  state  in  populous  neighborhoods.  Was  this  evidence  ad- 
missible ? 

121. 

A  telegram,  properly  addressed,  is  delivered  to  a  tele- 
graph company  for  transmission.  The  party  to  whom  the 
telegram  is  addressed  does  not  admit  receiving  it.  What  is 
the  presumption  in  such  a  case  ? 

122. 
An  insurance  company,  whose  right  to  do  business  in 
the  State  of  Missouri,  on  account  of  their  violation  of  a  stat- 
ute of  that  state  against  any  combination  among  insurance 
companies,  claimed  that  such  action  was  in  violation  of  the 
fourteenth  amendment  to  the  United  States  Constitution. 
Was  this  defense  a  valid  one  'I 

123. 

A ,   acting  for   an  undisclosed  principal    (C)    makes  a 

contract  in  his  omi  name  with  B— .    B —  made  the  contract 
on  account  of  hirs  personal  trust  and  confidence  in  A — .     Can 


TEST   CASES  283 

C —  compel  the  performance  of  this  contract,  or  recover  dam- 
ages for  its  non-performance? 

124. 
A — ,  a  tenant  in  common  with  B — ,  alienates  his  interest, 
and  then  brings  an  action  against  B —  for  -waste,  the  alleged 
waste  having  been  committed  before  the  alienation  of  A's 
interest.    Can  this  action  be  maintained? 

125. 
R — ,  an  attorney  at  law,  in  a  petition  for  a  rehearing 
of  a  certain  case,  presented  to  an  appellate  court,  uses  in- 
sulting, contemptuous  and  slanderous  language.  Has  the  ap- 
pellate court  to  whom  such  petition  was  presented  original 
jurisdiction  to  suspend  or  disbar  such  attorney? 

126. 

]\i — ,  a  passenger  on  a  railroad  train,  was  injured  while 
alighting  from  the  train  while  moving.  The  plaintiff 
introduced  evidence  to  the  effect  that  it  was  dark,  that  he 
felt  no  motion  of  the  train  and  believed  that  it  had  stopped, 
and  that  he  got  off  at  the  place  pointed  out  to  him  by  the  con- 
ductor, or  brakeman,  as  the  depot.  Is  this  proper  evidence  to 
go  before  the  jury? 

127. 

In  a  contested  will  case,  it  was  proved  by  those  uphold- 
ing the  will  that  the  testator  did  transact  business,  and 
h\\\y  understood  the  business  he  was  engaged  in,  at  the  time 
of  the  making  of  the  will.  Against  this  evidence  was  intro- 
duced that  the  testator  was  near-sighted  and  feeble  and  that 
several  years  before  the  time  of  the  making  of  the  will,  the 
testator  had  been  guilty  of  the  theft  of  various  small  articles 
from  his  neighbors.     Was  this  evidence  admissible? 

128. 
X —  issued  as  a  surety  on  a  bond  given  by  A — ,  a  de- 
ceased collector  of  taxes  of  the  town  of  ]\I — .    The  town  in- 
troduced as  evidences,  entries  which  A —  had  made  in  a  pri- 


284  putney's  bar  examination  review 

vate  aceonnt  book  of  liis,  which  showed  that  certain  taxes  had 
been  i)aid  to  him  by  certain  persons.  Were  these  entries 
proper  evidence? 

129. 
A  testator  devises  property  to  his  wife,  "to  hold  and 
to  have  to  her,  my  said  wife,  and  to  her  heirs  and  assigns  for- 
ever, but  if  she  ^'ets  married  again,  then  at  the  time  of  her 
second  marriage,  one-half  of  said  estate,  real  and  personal,  to 
be  sold  and  divided,  as  follows."  A  later  clause  in  the  will 
read  as  follows:  "If  my  beloved  wife,  Sibila  Barbara  Rup- 
precht,  remain  my  widow,  she  is  to  have  and  to  hold  the  whole 
estate,  real  and  jx-rsonal,  for  her  own  support,  until  her  death, 
and  after  her  death  the  residue  shall  be  divided  among  the 
abo\^e  named  persons  in  the  proportion  of  what  is  named  to 
the  whole."    What  estate  does  the  wife  take? 

130. 
A  will  contains  the  following  provision:  "I  give  and 
devise  all  the  rest,  residue  and  remainder  of  my  real  estate,  of 
every  name  and  nature  whatsoever,  upon  the  decease  of  my 
wife,  Sarah  StraAvbridge,  to  be  divided  equally  between  my 
children,  to-wit :  John  B.  Strawbridge,  William  R.  Straw- 
bridge,  Benjamin  F.  Strawbridge,  Harry  Strawbridge, 
George  B.  McC.  Strawbridge,  Emma  Mehan,  Jessie  Straw- 
bridge  and  Parson  Strawbridge  and  to  their  children  for- 
ever." Several  of  the  children  of  the  testator  mentioned  in 
the  will  had  children  of  their  own  living  at  the  time  the  will 
was  made.    Who  takes  under  this  devise,  and  what  estate? 

131. 

A  statute  of  Missouri  prohibited  civic  leagues  and  sim- 
ilar associations  from  publishing  reports  on  candidates 
or  nominees  for  public  ol^ce  unless  such  reports  contained 
the  information  upon  which  such  reports  were  based,  the 
names  and  addresses  of  the  persons  furnishing  such  informa- 
tion, and  the  information  furnished  by  each.  Was  such  stat- 
ute constitutional  ? 


TEST   CASES  283 

132. 

A  corporation  transfers  its  entire  property  to  another 
corporation,  the  only  consideration  being  the  issuance  of 
stock  to  trustees  to  be  exchanged  for  the  stock  of  the  sell- 
ing corporation.  What  rights  have  the  creditors  of  the  sell- 
ing corporation  ? 

133. 

AYhile  a  suit  in  equity  against  the  incorporated  board  of 
levee  commissioners  in  their  official  capacity  was  pending, 
the  legislature  of  the  state  abolished  this  board  and  the  duties 
of  such  board  devolved  upon  the  state  auditor  and  treasurer. 
What  action  should  be  taken  by  the  complainants? 

134. 

A  sheriff,  under  authority  of  writ  of  replevin  issued  by 
a  state  court,  seized  railway  cars  that  had  been  attached 
by  a  United  States  marshall  in  foreclosure  proceedings  in  the 
Federal  Court.  How  should  action  be  taken  to  recover  such 
cars  from  the  sheriff  ? 

135. 

The  plaintiff  after  having  given  a  cheek,  telegraphs  to 
the  bank  not  to  pay  the  same.  The  telegram  is  received  at 
the  bank,  fails  to  come  to  the  notice  of  the  proper  officer  of 
the  bank  in  time  to  stop  the  payment.  Is  the  bank  liable  for 
the  amount  of  the  check  paid? 

136. 
What  is  the  effect  of  a  state  statute  providing  that  "no 
action  shall  be  maintained  or  recovery  had  in  any  of  the 
courts  of  this  commonwealth  by  any  foreign  corporation  so 
long  as  it  fails  to  comply  with  the  requirements"  of  the  laws 
prescribing  the  conditions  upon  which  such  a  corporation 
may  transact  business  in  the  state,  upon  contracts  made  by 
such  corporations,  prior  to  complying  with  such  conditions? 

137. 
A  building  is  leased  for  five  years,   the  property   to   be 
used,  according  to  the  terms  of  the  lease  for  hotel  and  saloon 


28G  putney's  bar  examination  kkvikw 

purposes.  During  the  term  of  the  lease,  the  legislature  of  the 
state  in  which  the  property  is  situated,  passes  an  act  prohibit- 
ing the  sale  of  intoxicating  liquors  in  the  state.  Is  the  lessee 
entitled  to  any  reduction  of  the  agreed  rental  ? 

138. 
The  issuance  of  certain  railroad  aid  bonds  by  a  town 
was  secured  by  fraud.  The  town,  however,  pays  the  interest 
on  these  bonds  regularly  for  nine  years,  and  also  pays  otf  the 
principal  of  a  portion  of  the  bonds,  and  the  bonds  remaining 
unpaid  have  passed  into  the  hands  of  bona  fide  holders  for 
value.  Can  the  town  now  contest  the  validity  of  the  unpaid 
bonds? 

139. 
The  creditors  of  A —  brought  a  suit  to  set  aside  a  con- 
veyance of  land  to  his  daughter.  At  the  trial  the  daughter 
testified  that  her  father  had  frequently  promised  to  give  her 
the  real  estate  in  return  for  her  aid  in  the  support  of  the  fam- 
ily. The  court  instructed  the  jury,  that,  in  so  far  as  the  deed 
was  given  for  services  rendered  by  the  daughter  while  a 
minor,  they  "were  an  inadequate  consideration,  as  such  serv- 
ices belonged  to  her  father."    Was  this  instruction  correct? 

140. 

An  insurance  policy  contains  the  provision  that  "this 
insurance  does  not  cover  injuries  fatal  or  otherwise  resulting 
from  poison  or  anything  accidentally  or  otherwise  taken,  ad- 
ministered, absorbed  or  inhaled. "  The  insured  died  from  eat- 
ing unsound  and  spoiled  oysters.  Can  there  be  a  recovery 
under  this  policy? 

141. 
A  petition  was  brought  for  an  injunction  to  restrain  a 
nuisance.  Upon  trial  it  was  shown  that  the  nuisance  existed 
at  the  time  the  suit  was  brought,  but  had  been  terminated  be- 
fore the  suit  came  to  a  hearing.  Under  this  state  of  affairs 
can  the  injunction  be  issued? 


TEST    CASES  287 

142. 

An   insurance   policy   contains   a   clause   which   provides 

that  the  policy  shall  become  void  "if  any  change take 

place  in  the  interest,  title,  or  possession  of  the  subject  of  in- 
surance." The  owner  of  the  property  makes  a  contract  to 
sell  the  property  insured  and  the  consideration  has  been  paid, 
but  no  transfer  has  been  made  either  of  possession  or  of  title. 
Can  the  policy  be  recovered  on  in  case  of  destruction  of  the 
property  by  fire? 

143. 

A —  was  convicted  of  the  crime  of  compounding  a  fel- 
ony. The  indictment  on  which  he  was  convicted  did  not 
allege  that  the  person  with  whom  the  defendant  was  alleged 
to  have  made  the  corrupt  agreement  was  guilty  of  the  crime 
charged  against  him.    Can  the  conviction  be  sustained? 

144. 
A — ,  the  owner  of  a  certain  piece  of  real  property,  filed 
a  bill  in  equity,  seeking  to  restrain  an  adjoining  property 
owner  from  maintaining  a  certain  high  fence.  The  ground 
alleged,  upon  which  it  is  sought  to  secure  the  injunction  is 
that  the  fence  shuts  out  air  and  light  from  a  building  owned 
by  the  complainant.     Should  the  injunction  b(^  granted? 

145. 
In  an  action  against  the  city  of  A — ,  for  damages  for 
the  death  of  the  plaintiff's  wife,  tlirough  the  negligence  of 
the  defendant  in  operating  an  electric  lighting  plant,  the 
court  ordered  judgment  to  be  given  for  the  defendant,  on  the 
ground  that  the  defendant,  being  a  municipal  corporation  was 
not  liable  to  pay  hny  damages,  even  though  the  death  of  plain- 
tiff's wife  was  caused  by  the  negliaent  operation  of  the  elec- 
tric plant.     Should  this  decision  l)p  sustained? 

146. 
A —  devised  property  owned  by  him   in   fee  to   his  two 
grand  children,  J^ —  and  C — .     In  the  same  will  A —  devises 


288  putney's  bar  examixatiox  ki:\ie\v 

property,  in  which  he  has  but  a  life  estate,  and  of  whieh  B — 
and  C —  are  remaindermen,  to  C— .     What  are  B's  rights? 

147. 
A — ,  a  mai'ried  "woman,  purehases  a  set  of  ])()oks  known 
as   "Stoddard's   Lectures,"    on   credit;    B — ,    her   husband 
later  makes  an  oral  promise  to  pay  for  such  books.    B —  is 
sued  for  the  price  of  the  l)ooks.    Judgment' for  Avliom? 

148. 
In  a  suit  for  the  value  of  a  dog,  the  plaintiff,  in  order 
to  prove  the  high  value  of  the  dog,  offers  as  proof,  the  general 
reputation  as  to  the  pedigree  of  the  dog.     Is  such  evidence 
admissible? 

149. 
F — ,  writes  to  M — ,  who  is  not  indebted  to  him  and 
who  does  not  have  any  of  his  (F's)  funds  in  his  possession, 
asking  him  to  pay  his  (F's)  debt  to  X — .  M —  orally  prom- 
ises X —  to  pay  such  debt  and  actually  pays  a  part  of  it.  Upon 
the  refusal  of  M —  to  pay  the  balance,  suit  is  brought  by  X — 
against  M — .     Can  there  be  a  recovery? 

150. 
II —  is  on  trial  for  murder.  The  state  presents  as  a  wit- 
ness against  him,  his  second  wife,  B — ,  alleging  that  H — 
had  another  wife  living  at  the  time  of  his  marriage  to  B — . 
This  is  denied  by  the  defense  who  object  to  B —  being  al- 
lowed to  testify.  Is  the  question  of  the  competency  of  the 
witness  one  for  the  court  or  for  the  jury  ? 


ANSWERS. 

(With  reference  to  case  upon  which  question  is  based.) 

1.  No.  While  it  is  the  duty  of  cities  and  villages  to  use 
reasonable  care  to  keep  their  streets  in  reasonably  safe 
condition  for  public  travel,  and  free  from  obstructions,  yet 
they  are  not  insurers  against  accidents  to  persons  using  the 
streets,  and  they  have  power  to  authorize  the  laying  of 
street  railroad  tracks  and  the  erection  of  electric  light 
poles  in  the  streets.  (Village  of  Lockport  vs.  Licht,  221 
111.,  35.) 

2.  Yes.  A  proprietor  of  land  may  change  the  course  of 
a  natural  water  course  within  the  limits  of  his  own  land, 
provided  he  restores  it  to  the  original  channel  before  the 
lands  of  another  are  reached.  (Fenton  and  Thompson  Rail- 
road Company  vs.  Adams,  221  111.,  201.) 

3.  Gas  may  be  the  subject  of  larceny,  and  the  person 
in  this  case  is  guilty  of  this  crime.  The  selling  price  of 
the  gas  to  consumers  in  the  vicinity  where  the  gas  is  stolen, 
is  to  be  taken  ni  tletermining  the  value  of  the  gas  stolen. 
(Woods  vs.  Illinois,  222  111.,  293.) 

4.  Yes.  There  may  be  a  recovery  under  the  common 
counts,  on  a  written  contract,  provided  the  agreement  ha& 
been  substantially  performed  and  nothing  remains  to  he 
done  but  to  make  payment  thereunder.  (Bauer  vs.  Ilindley, 
222  111.,  319.) 

5.  In  determinijig  whether,  or  not,  a  child  Avas  guilty 
of  contributory  negligence,  it  is  proper  to  consider  the  age, 
experience,  intelligence,  etc.,  of  the  child ;  and  the  instruc- 
tion in  this  case  was  properly  refused.  (Star  Brew^ery  Co. 
vs.  Hanck,  222  111.,  348.) 

6.  Yes.  The  reply  of  the  motorman  to  the  warning 
given  w^as  sufficiently  closely  connected  with  the  thing  done 
to  make  it  competent.  (The  Chicago  City  Railway  Com- 
pany vs.  McDonough,  Adms.,  221  111.,  69.) 

289 


290  putxky's  bau  examination  keview 

7.  Yes.  In  this  transaction  B  was  held  to  be  the  agent 
of  C ;  and  notice  to  the  agent  was  binding  on  the  principal. 
(Ainos  vs.  The  American  Trust  and  Saving  Bank,  Con- 
servator, 221  111.,  100.) 

8.  No.  Whether  the  fact  that  a  juror  has  formed  an 
opinion  as  to  the  case  is  cause  for  challenge  depends  largely 
upon  the  strength  of  such  opinion,  as  ranging  from  a  mere 
impression  to  a  settled  conviction;  and  the  mere  fact  that 
he  states  that  it  will  require  evidence  to  change  that  opin- 
ion and  that  he  will  otherwise  give  his  verdict  in  accord- 
ance with  such  opinion  is  not  cause  for  challenge,  irre- 
spective of  the  degree  of  evidence  its  removal  will  require. 
(Williams  vs.  Supreme  Court  of  Honor,  221  111.,  152.) 

9.  No.  Equity  will  not  enforce  a  contract  of  this  char- 
acter in  restraint  of  trade.  (Simms  vs.  Burnette,  55  Fla., 
702.) 

10.  No.  An  answer  to  this  question  by  this  particular 
witness  would,  of  necessity,  be  merely  hearsay  evidence. 
(Estate  of  Dolbeer,  153  Cal.,  652.) 

11.  The  estate  of  the  grandmother  was  liable  for  the 
expenses  of  one  additional  year's  expenses  only.  (Younger- 
man  vs.  Youngerman,  136  Iowa,  488.) 

12.  Embezzlement.  An  agent  is  guilty  of  this  crime  who 
appropriates  to  his  ow^n  use  property  received  by  virtue  of 
his  implied  authority  as  well  as  property  received  by  virtue 
of  his  express  authority.  (Smith  vs.  State,  53  Tex.  Crim., 
117.) 

13.  No.  This  statement  is  not  susceptible  of  the  mean- 
ing  attached  to  it  by  tlie  plaintiff,  in  this  suit,  that  the  con- 
tractor was  dishonest,  unreliable  and  undeserving  of  the  con- 
fidence of  the  public  in  his  vocation.  If  any  tort  is  com- 
mitted by  placing  a  name  on  a  blacklist,  it  is  not  that  of 
libel.  (Labor  Keview  Publishing  Co.  vs.  Galliher,  153  Ala., 
364.) 

14.  No.  This  is  not  such  a  contract  as  may  be  sued  upon 
by  a  person  who  was  not  a  party  to  the  contract.  (Saun- 
ders vs.  Saunders,  154  Mass.,  337;  28  N.  E.,  270.) 

15.  No.     It  was  held  that  the  contract  showed  the  in- 


AX.-5\VKHS  291 

tentiou  of  the  parties  to  be  that  the  support  should  be 
given  to  the  brother  and  sister  at  the  place  specified  and 
uovv'here  else,  (Dwelley  vs.  Dwelley,  143  Mass.,  509;  10 
N.  E.,  468.) 

16.  Yes.  It  was  held  that  there  were  facts  indicating 
that  an  agency  existed,  which  would  justify  the  jury  in 
finding  such  to  be  the  case,  even  against  the  positive  testi- 
mony of  both  father  and  son  to  the  contrary.  (Ford  vs. 
Linehan,  146  Mass.,  283;  15  N.  E.,  591.) 

17.  No.  The  agent  in  this  case  was  acting  under  the 
direction  of  the  principal.  (New  York  P.  and  B.  R.  Co.  vs. 
Dixon,  114  N.  Y.,  80;  21  N.  E.,  110.) 

18.  Yes.  Such  evidence  was  immaterial  on  the  question 
of  the  guilt  of  the  person  of  the  crime  for  which  he  was 
being  tried.   (Commonwealth  vs.  IMullen,  23  N.  E.,  51.) 

19.  No.  (Grisson  vs.  Hafins,  89  Wash.,  51 ;  4  American  and 
English  Annotated  Cases,  125.) 

20.  In  this  case  the  note  was  held  to  be  non-negotiable 
on  account  of  the  uncertainty  of  the  amount  to  be  paid. 
(Green  vs.  Spires,  71  S.  C,  107;  4  American  and  English 
Annotated  Cases,  261.)  The  decisions  of  the  various  courts, 
as  to  the  effect  upon  the  negotiability  of  a  note,  of  a  stipu- 
lation for  the  payment  of  an  attorney's  fee  in  case  of  suit, 
are  in  hopeless  conflict.  The  federal  courts  and  the  courts 
of  many  of  the  states  (e.  g.,  Illinois)  hold  that  such  a  pro- 
vision does  not  destroy  negotiability,  the  opposite  view  be- 
ing held  by  remainder  of  the  states. 

21.  No.  (Green  vs.  Hartford  Life  Insurance  Co.,  139  N.  C, 
309;  4  Amer.  &  English  Annotated  Cases,  360.) 

22.  Yes.  The  defense  of  failure  of  demand  or  protest 
is  one  which  may  be  waived.  No  new  consideration  is  re- 
quired in  such  a  ease  under  the  same  theory  by  which  no 
new  consideration  is  necessary  for  the  waiver  of  the  defense 
furnished  by  the  statute  of  limitations.  (Burgettstown  Na- 
tional Bank  vs.  Nill,  213  Pa.  St.,  456 ;  5  Amer.  &  Eng.  Anno- 
tated Cases,  476.) 

23.  Yes.  Equity  here  "looks  at  the  intent  rather  than 
the   form;"   and   it   was   evident  that   the  intention   of  the 


292  PLTXEY'ri    15AU    J.XAMIX ATION    REVIEW 

surety  in  buying  the  claim  was  merely  to  protect  himself, 
and  that  Le  did  not  buy  the  debt  for  the  purpose  of  an 
investment.      (Fanning   vs.  .Murphy,   26  Wis.,   538.) 

24.  No.  A  surety  is  always  entitled  to  rely  U])on  the 
strict  terms  of  the  original  contract;  and  although,  in  this 
case,  no  limit  had  been  placed  upon  the  duration  of  the 
bond,  it  coukl  not  be  held  to  continue  in  force  af.er  the 
term  for  which  the  cashier  had  been  elected  had  expired. 
(Ida  County  Savings  Bank  vs.  Seidensticker,  128  Iowa,  54; 
5  American  and  English  Annotated  Cases,  945.) 

25.  No.  It  was  held  that  the  loss  in  this  case  fell  under 
the  excepted  losses  in  the  policy.  (Hall  vs.  National  Fire 
Ins.  Co.,  115  Term.,  513.) 

26.  Yes.  Such  books  may  be  admitted  as  containing 
entries  made  in  the  regular  course  of  business.  (Cobb  vs. 
Wells,  124  N.  Y.,  77;  26  N.  E.,  284.) 

27.  No.  In  a  court  of  equity  the  complainant  must  re- 
cover, if  at  all,  on  the  case  made  by  his  bill.  Therefore, 
on  a  bill  to  prevent  the  removal  of  a  bridge  on  the  ground 
that  it  is  a  part  of  a  public  highway,  and  to  have  the  same 
kept  in  repair,  the  complainant  cannot  have  a  decree  en- 
joining the  removal  of  the  bridge  on  the  ground  it  is  his 
property  by  being  located  on  his  land,  and  because  he  has 
an  interest  in  the  road  and  bridge  as  an  abutting  property 
owner,  wdiich  can  not  be  taken  without  just  compensation. 
(Brockhausen  vs.  Bochland,  137  111.,  547.) 

28.  Yes.  Where  the  agent  of  an  insurance  company  is 
entrusted  wnth  checks  and  receipts  for  the  purpose  of  set- 
tling a  death  claim,  the  agent's  representations,  declara- 
tions and  admissions,  in  closing  up  the  transaction,  if  made 
at  the  same  time  and  constituting  a  part  of  the  res  gestae, 
are  binding  upon  the  company.  (Plartford  Life  Insurance 
Co.  vs.  N.  J.  Sherman,  223  111.,  329.) 

29.  No.  A  switch  tender  is  not  a  fellow-servant  of  the 
crew  of  an  engine  switching  in  the  yards  where  such  crew 
is  in  the  employ  of  a  different  company,  which  uses  the 
yards  of  the  switch  tender's  employer  without  being  under 
the  direction  or  control  of  the  latter  further  than  to  obey 


ANSWERS  293 

its  yard-master's  general  orders  as  to  what  tracks  to  use, 
tliere  being  nothing  to  show  the  switch  tender  was  loaned 
to  the  defendant  or  that  he  was  co-operating  with  defend- 
ant's crew  at  the  time  of  his  injury,  (Pittsburg,  Cincin- 
nati, Chicago  and  St.  Louis  Ry.  Co.  vs.  Bovard,  Admx.,  223 
111.,  176.) 

30.  No.  "The  evidence  as  to  the  location  of  the  posts 
was  not  admissible  as  proof  of  negligence  or  to  establish 
a  cause  of  action  against  the  appellant,  both  for  want  of 
any  averment  concerning  them  in  the  declaration  and  be- 
cause appellee  knew  all  about  their  location  and  assumed 
all  risks  occasioned  thereby.  The  posts  were  not  the  cause 
of  the  injury,  and  the  evidence  was  only  offered,  for  what- 
ever it  might  amount  to,  as  an  excuse  for  not  removing  the 
slats  in  a  different  manner.  It  was  a  question  whether  ap- 
pellee was  exercising  ordinary  care  for  his  own  safety,  and 
the  court  did  not  err  in  admitting  the  testimony  as  an  ex- 
planation why  he  did  not  go  behind  the  machine  instead  of 
putting  his  hand  under  the  blade."  (United  States  Wind 
Engine  &  Pump  Co.  vs.  Butcher,  223  111.,  638,  640.) 

31.  No.  A  pardon  restores  the  convict,  so  far  as  the 
public  is  concerned,  to  the  position  he  occupied  before  the 
conviction,  but  it  can  in  no  way  affect  the  private  rights  of 
individuals.  The  right  of  the  wife  to  sue  for  divorce  is 
acquired  upon  the  conviction,  and  cannot  be  taken  away 
by  the  pardon.     (Holloway  vs.  Ilolloway,  126  Ga.,  459.) 

32.  No.  Special,  or  sentimental,  value  which  property 
may  have  for  a  person  can  never  become  an  element  in  de- 
termining damages.  (Wade  vs.  Hearndl,  127  Wis.,  544;  7 
American  and  English  Annotated  Cases,  591.) 

33.  Yes.  Such  aggravation  of  the  previously  existing 
ailment  may  be  considered  a  proximate  consequence  of  the 
injury  received.  Both  gick  and  well  persons  have  the  right 
to  recover  damages  for  injuries  received  in  the  condition 
of  health  in  which  they  are  at  the  time  of  the  injury. 
(Smart  vs.  Kansas  City,  208  Mo.,  162;  13  American  and 
English  x\nnotated  Cases,  932.) 

34.  The  Bath   Company  was   a  bailee   for    the    mutual 


294  putney's  liAU  kxa.mixatiox  iii:vii:\\ 

benefit  of  hailor  and  bailee,  ami  was  liable  Tor  ordinary 
negligence.  The  plaiutiif  recoverf'd  a  .jiidgiuent  in  the 
case.     (Sulpho-Sabine  Fiatli  Co.  vs.  Alien,  (iU  Xcb.,  2!'.").) 

35.  The  vendor  should  treat  the  note  as  a  nullity,  and 
sue  the  purchaser  for  the  value  of  the  goods  sold.  (.Mont- 
gomery vs.  Forbes,  148  :\Iass.,  249;  19  X.  E.,  :U2.) 

8G.  Yes.  They  plainly  imply  the  commission  of  a  crime 
Avhit'h  involves  moral  turpitude  and  is  punishable  by  ini- 
pri.sonment.     (Logan  vs.  Hodges,  146  N.  C,  38.) 

37.  The  instruction  was  improper;  the  use  of  the  word 
"clear,"  before  preponderance,  being  misleading.  (Flem- 
ing vs.  Lock  wood,  36  ^Montana,  384.) 

38.  The  evidence  was  incorrectly  exeludetl.  Notwith- 
standing the  fact  that  the  statute  of  the  state  provided 
that  infants  under  the  age  of  ten  years  should  be  incom- 
petent to  testify,  the  declaration  of  an  infant  under  that 
age,  made  immediately  after  the  happening  of  an  accident 
in  his  presence,  and  having  an  important  bearing  on  the 
responsibility  for  the  accident,  is  admissible  as  part  of  the 
res  gestae.  (Beal-Doyle  Dry  Goods  Company  vs.  Carr,  85 
Ark.,  479;  14  American  and  English  Annotated  Cases,  48.) 

39.  No.  "The  general  rule  is  that  the  law  will  not  aid 
either  party  to  an  illegal  agreement,  but  an  exception  is 
made  where  the  illegal  agreement  or  purpose  has  not  been 
carried  out.  *  *  *  The  broad  rule  has  been  laid  down 
that  when  money  or  property  is  delivered  by  a  principal  to 
his  agent  for  an  illegal  purpose  or  for  the  purpose  of  carry- 
ing into  execution  an  illegal  contract,  the  agent  cannot  set 
up  such  illegal  object  to  prevent  a  recovery  by  the  prin- 
cipal from  the  agent  of  such  money  or  property,  so  long 
as  it  remains  in  his  hands."  (AYare  vs.  Spinney,  76  Kan- 
sas, 289.) 

40.  No.  The  sheriff,  paying  the  note  under  these  cir- 
cumstances, was  not  a  volunteer,  and  became  subrogated  to 
all  the  rights  of  the  county  against  the  surety.  (Wilson  vs. 
White,  82  Ark.,  407;  12  American  and  English  Annotated 
Cases,  378.) 

41.  Yes.     One  or  more  forged  names  on  a  negotiable  in- 


ANSWERS  295 

strument  does  not  affect  the  liability  of  any  person,  whose 
signature  on  the  paper  is  genuine,  to  a  bona  fide  'holder  for 
value.     (First  National  Bank  vs.  Show%  149  Mich.,  362.) 

42.  Yes.  "Even  though  the  killing,  by  the  husband  of 
the  paramour  of  the  wife  is  done  under  such  circumstances 
that  the  law  would  class  the  act  as  justifiable  homicide, 
such  killing  is  not  at  the  hands  of  justice,  either  punitive 
or  preventive,  within  the  meaning  of  a  clause  in  a  life  in- 
surance policy  excepting  deaths  'caused  or  superinduced 
at  the  hands  of  justice,'  etc.  Death  by  the  punitive  hands 
of  justice  is  when  tlie  law  commands  the  killing.  Death 
by  the  hands  of  preventive  justice  is  where  the  law  per- 
mits the  killing.  In  each  instance  the  killing  must  be  by 
some  person  authorized  to  carry  out  the  commands  of  the 
law%  or  who  is  permitted  l)y  the  law  to  do  the  act  is  the 
advancement  of  public  justice."  (Supreme  Lodge  Knights 
of  Pythias  vs.  Crenshaw-,  129  Ga.,  195;  12  American  and 
English  Annotated  Cases,  807.'/ 

43.  Yes.  A  parol  declaration  is  sufficient  to  create 
such  trust ;  and  it  is  not  essential  to  the  creation  of  a  valid 
trust  that  the  cestui  que  trust  should  know  of  the  trust 
at  the  time  of  the  transfer  of  the  property  in  trust.  (Clark 
vs.  Callahan,  105  Md.,  600.) 

44.  No.  Suits  of  this  character  must  be  decided  upon 
the  particular  state  of  facts  in  each  case;  and  in  this  suit 
the  court  held  that  substantial  damages  had  not  been 
proved  by  the  complainant.  (Salvin  vs.  North  Brancepeth 
Coal  Co.,  Law  Rep.  9  Chan,  App.,  705;  Keener's  Cases  in 
Equity,  Vol.  I.,  P.  736.) 

45.  No.  Under  the  principle  contained  in  the  equitable 
maxim,  "equity  acts  in  personam  and  not  in  rem,"  when- 
ever an  equity  court  has  jurisdiction  over  the  person  of  the 
defendant  in  a  suit  in  equity,  such  court  may  decide  a  con- 
troversy affecting  land  lying  outside  of  the  territorial  juris- 
diction of  the  court.  (Penn.  vs.  Lord  Baltimore,  1  Vesey 
Sr..  444;  Keener's  Cases  on  Equity,  Vol.  I.,  P.  12.) 

46.  The  Supreme  Court  of  the  United  States  decided 
that  K had  been  put  twace  in  jeopardy,  and  should  be 


29G  putney's  bar  examination  review 

discharged.  It  was  held  that  wherever  Congress  used  an 
expression  which  had  an  established  meaning  at  common 
law,  such  expression  must  be  presumed  to  have  been  used 
in  the  sense  of  such  meaning  established  at  the  common 
law.     (Kepner  vs.  United  States,  195  U.  S.,  100.) 

47.  Yes.  The  effect  of  a  plea  of  guilty  amounts  only 
to  an  admission  of  record  of  the  truth  of  Avhatever  is  suf- 
ficiently charged  in  indictment.  (State  vs.  Kelley,  206  Mo., 
685;  12  American  &  English  Annotated  Cases,  681.) 

48.  Yes.  Prohibitory  provisions  in  a  constitution  are, 
with  few  exceptions,  self-executory.  (Succession  of  Gabis- 
co,  119  La.,  704.) 

49.  Yes.  The  circumstances  in  this  case  were  sufficient 
to  create  a  trust.  (McKenna  vs.  Devlin,  158  Mass.,  63;  32 
N.  E.,  1028.) 

50.  Yes.  This  law  was  a  valid  exercise  of  the  police 
power  of  the  state,  (In  re  Selectmen  of  Norwood,  161 
Mass.,  259;  37  N.  E.,  199.) 

51.  The  defendant  should  demur.  (Bateman  vs.  Snoddy, 
132  lud.,  480;  32  N.  E.,  327.) 

52.  Yes.  The  mere  fact  that  a  cross  bill  sets  forth  new 
facts  (as  here  that  the  deed  created  a  trust)  does  not  pre- 
vent the  subject  matter  of  the  cross  bill,  being  germane  to 
the  original  bill,  provided  the  cross  bill  does  not  make  a 
foreign  or  multifarious  issue.  (Kingsbury  vs.  Buckner,  134 
U.  S.,  650.) 

53.  Yes.  The  case  made  and  the  relief  sought  by  the 
supplemental  bill  has  a  legitimate  and  natural  connection 
with  the  case  made  and  the  relief  sought  in  the  original  l)ill. 
(Sheffield,  etc.,  E.  Co.  vs.  Newman,  23  C.  C.  A.,  459;  77  Fed. 
Rep.,  787.) 

54.  Yes.  "Though  a  court  of  equity  cannot  grant  relief 
on  a  case  that  is  not  fairly  made  by  the  bill  and  answer,  yet 
it  is  not  necessary  that  these  should  point  out  in  detail  the 
exact  course  to  be  pursued.  Under  the  prayer  for  general 
relief,  the  court  will  adapt  and  shape  its  decree  in  accord- 
ance with  the  true  equity  of  the  cause."  Street's  Federal 
Equity  Practice,  Par.  1943.  (Sage  vs.  Railway  Co.,  99  U.  S., 
334.)  ^ 


AiNSWERS  297 

55.  Yes.  If  a  quorum  of  a  legislative  body  is  present,  a 
majority  vote  of  those  voting  on  a  bill  is  sufficient  to  pass  it. 
(Note,  In  some  states  there  are  constitutional  provisions  as 
to  the  vote  required  to  pass  a  bill  by  the  legislature.) 
(United  States  vs.  Ballin,  Joseph  &  Co.,  144  U.  S.,  1.) 

56.  No.  The  provision  of  the  Federal  constitution  giving 
Congress  the  power  to  regulate  commerce  between  states  is 
not  violated  by  a  state  law  passed  under  its  police  power 
and  operating  upon  the  subjects  and  means  of  interstate 
commerce  and  persons  engaged  therein,  unless',  in  its  effect, 
it  lays  some  burdens  or  restrictions  upon  such  commerce 
which  would  not  otherwise  exist.  (People  ex  rel  Stead  vs. 
The  Chicago,  Indianapolis  and  Louisville  Ry.  Co,  et  al,  223 
111.,  581.) 

57.  Yes.  In  passing  upon  the  constitutionality  of  a  state 
statute,  the  Supreme  Court  of  the  United  States  will  follow 
the  decisions  of  the  state  court  of  last  resort  as  to  the  pur- 
pose and  scope  of  the  statute,  and  will  only  determine 
whether  the  statute  as  so  construed  is  in  conflict  with  the 
Federal  Constitution.  (Northwestern  National  Life  Ins.  Co. 
vs.  Riggs,  203  U.  S.,  243 ;  7  American  &  English  Annotated 
Cases,  1104.) 

58.  Yes.     (In  re  Paulson,  127  Wis.,  612.) 

59.  Each  daughter  takes  one-fifth  of  one-fifth  of  the  es- 
tate; not  one-fifth  of  the  whole  estate,  although  the  will 
made  no  disposition  of  the  remaining  four-fifths  of  the 
estate.     (Gilmore  vs.  Jenkins,  129  Iowa,  686.) 

60.  The  exceptions  should  be  overruled.  When  libelous 
words  are  written  in  a  foreign  language  they  should  be*  set 
out  in  that  language,  and  a  translation  given;  and  such 
translation  must  be  proved  to  be  correct.  (Romano  vs.  De 
Vito,  191  Mass.,  457.   ) 

61.  No.  When  evidence  of  a  custom  is  introduced,  either 
as  an  affirmative  defense  or  for  the  purpose  of  recoupment, 
it  must  be  specially  pleaded.  (McCurdy  vs.  Alaska  &  Chi- 
cago Commercial  Co..  102  111.  App.,  120.) 

62.  No.  Sufficient  evidence  was  not  presented  that 
notice  had  been  given  the  opposing  side  to  produce  the  orig- 
inal document.     (Landt  vs.  IMcCulloeh.  103  III.  App.,  6G^.) 


298  tutney's  bar  examination  review 

63.  Yes.  "Nothing  is  better  settled  by  our  eases  than 
that  where  one  commences  a  criminal  prosecution  for  the 
purpose  of  compelling  his  debtor  to  pay  a  just  debt,  it  is 
prima  facie  evidence  of  want  of  probable  cause  and  of 
malice,  and  shifts  the  burden  of  showing  it  was  not  so  on 
the  defendant.  The  defendant  having  admitted  that  he  com- 
menced the  criminal  prosecution,  for  the  purpose  of  getting 
his  money  back  and  thereby  attempting  to  enforce  payment 
of  a  debt  is  within  the  rule  of  the  cases  just  cited,  and  the 
burden  was  on  him  to  show  that  he  had  probable  cause  and 
was  not  actuated  by  malice."  (MacDonald  vs.  Schroeder, 
214  Pa.  St.,  411 ;  6  American  &  English  Annotated  Cases, 
506.) 

64.  Yes.  The  decision  in  this  case  rested  on  the  princi- 
ple that  a  corporation  charter  is  a  contract,  which  is  entitled 
to  the  same  protection  as  any  other  contract.  (Chenango 
Bridge  Co.  vs.  Burghamton  Bridge  Co.,  3  Wallace,  51.) 

65.  The  question  is  one  to  be  determined  by  the  jury. 
In  an  action  by  the  seller  to  recover  for  goods  sold  by  sample 
it  is  a  question  of  fact  whether  the  goods  delivered  by  the 
plaintiff  correspond  in  size  and  quality  with  the  sample. 
(Kemensky  vs.  Chapin,  193  Mass.,  500;  9  American  &  Eng- 
lish Annotated  Cases,  1168.) 

66.  A  may  secure  an  order  for  the  dissolution  of  the 
partnership,  and  also  recover  damage  against  B  for  the  de- 
ceit.    (Jones  vs.  "Weir,  217  Pa.  St.,  321.) 

67.  No.  A  stockholder  does  not  stand  in  a  fiduciary  po- 
sition towards  the  corporation  in  which  he  holds  stock.  In 
the  'absence  of  fraud  a  stockholder  in  a  corporation  may 
contract  with  such  corporation.  The  position  of  a  stock- 
holder who  holds  a  controlling  interest  in  a  corporation  has 
l)een  thus  stated:  "AVhere  a  person  has  the  actual  control 
of  a  corporation,  whether  such  control  arises  from  the  own- 
ership of  a  majority  of  the  shares,  or  from  his  position  or 
influence,  he  is  held  to  most  rigid  good  faith.  The  onus  is 
upon  him  to  shoAV  tlie  fairness  of  the  transaction  if  it  is 
called  in  question."     (Price  vs.  Holcomb,  89  Iowa.  123.) 

68.  Yes.     It  was  held  that,  as  between  the  parties  vari- 


ANi^WEKS  299 

ously  forming  the  partnership,  an  assumption  and  promise 
to  pay  the  note  held  by  the  plaintiff  arose,  based  upon  a  suf- 
ficient consideration,  the  benefit  of  which  the  plaintiff  could 
take  advantage  of  and  enforce.  (Case  vs.  Ellis,  30  N.  E., 
907.) 

69.  No.  Duties  imposed  upon  corporations,  not  by  virtue 
of  express  law  or  by  the  conditions  of  their  charters,  but 
arising'  out  of  contract  relations,  wall  not  be  enforced  by 
mandamus.  (State  ex  rel.  Burg  vs.  IMilwaukee  IMedical  Col- 
lege, 128  Wis.,  7;  8  Amer.  &  Eng.  Annot.  Cases,  407.) 

70.  Yes.  (Ilannigan  vs.  Mori^issey,  127  N.  Y.,  639;  27 
N.  E.,  402.) 

71.  The  laws  of  Indiana  will  determine  the  question  of 
liability.  In  an  action  against  a  master  to  recover  dam- 
ages for  personal  injuries  sustained  in  a  foreign  state  by  a 
servant  during  the  course  of  his  employment  there,  the  law 
of  the  foreign  state  controls  in  determining  the  question 
whether  the  servant  is  entitled  to  recover,  when  the  con- 
tract of  employment  was  made  in  that  state.  (Christiansen 
vs.  William  Graver  Tank  Works,  223  111.,  142.) 

72.  Yes.  The  amount  of  the  property  settled  upon  the 
wife  is  so  disproportionate  to  the  amount  of  the  husband's 
estate,  as  to  raise  the  presumption  that  an  unfair  advantage 
was  taken  of  the  wife,  in  inducing  her  to  enter  into  the 
agreement.  (Achilles  vs.  Achilles,  151  111.,  499,  37  N.  E., 
693.) 

73.  The  measure  of  the  plaintiff's  damage  will  be  the 
difference  between  the  contract  price  and  the  price  for 
which  the  barrels  can  be  sold  to  some  other  party.  (Neal 
vs.  Shewalter,  31  N.  E.,  848;  5  Ind.  App.,  147.) 

74.  No.  A  man  is  not  under  legal  obligation  to  support 
his  stepchild,  but  if  he  takes  him  into  his  home  and  stands 
towards  him  in  loco  parentis,  he  cannot  recover  for  his  sup- 
port.    (Livingston  vs.  Hammond,  162  ]\Tass.,  375.) 

75.  No.  The  rule  that  marriages,  valid  where  made  are 
valid  everyw^here  is  subject  to  exceptions,  one  of  which  is 
that,  where  a  resident  and  citizen  of  one  state  goes  into 
another,   and  there  contracts  a  marriage  prohibited,  from 


300  putney's  bah  kxamixatiox  review 

considerations  oi'  public  i)olicy  antl  good  morals,  hy  the  law 
of  liis  domicile,  such  law  cannot  suc(,'esst'ully  he  invoked  in 
suppoi't  oi'  the  marriage  so  contracted,  or  of  claims  pre- 
dicted upon  the  validity  thereof.  (Succession  of  Gabisso, 
119  La.,  704;  12  Amer.  &  Eng.  Annot.  Cases,  574.) 

76.  No.  The  delivery  back  by  the  grantee,  to  the 
grantor,  of  an  unrecorded  deed  does  not  affect  the  legal 
title,  but  such  re-delivery  if  made  with  the  intention  that 
the  deed  shall  be  destroyed  for  the  purpose  of  revesting 
title  in  the  grantor,  passes  an  equitable  title.  (Grossman 
vs.  Keister,  223  111.,  69.) 

77.  None  of  the  evidence  mentioned,  or  all  of  it  to- 
gether, was  sufficient  to  prove  undue  influence.  (Trubey  vs. 
Richardson,  224  111.,  136.) 

78.  No.  The  necessity  of  alleging  a  performance  of  the 
condition  precedent,  w^as  done  away  with  by  the  allegation 
of  the  waiver  of  such  condition  by  the  defendant.  (Kissack 
vs.  Bourke,  224  111.,  352.) 

79.  Yes.  The  minor  cannot  be  held  bound  by  the  con- 
tract of  bailment  made  by  his  agent.  (Still  vs.  Keith,  143 
Mass.,  224,  9  N.  E.,  577.) 

80.  Yes.  Such  pre-existing  debt  alone  will  not  be  a  suf- 
ficient consideration  to  constitute  the  transferee  a  bona  fide 
purchaser  for  value,  as  against  the  owner  from  whom  the 
goods  were  obtained  by  fraud.  (Eaton  vs.  Davidson,  46 
Ohio  St.,  355:  21  N.  E.,  442.) 

81.  Yes.  A  merchant  who  (as  in  this  case)  sells  ready- 
made  cloaks  at  retail  and  provides  mirrors  for  the  use  of 
customers  wdiile  trying  them  on  and  clerks  to  aid  in  the 
process,  thereby  impliedly  invites  his  customers  to  take  off 
their  wraps  and  lay  them  down  in  the  store,  and  is  bound 
to  exercise  some  care  over  such  wraps.  (Bunnell  vs.  Stern, 
25  N.  E.,  910.) 

82.  Yes.  "We  think  that  mirrors  are  generally  re- 
garded, as  they  were  in  the  present  case,  as  a  part,  not  of 
the  house,  but  of  the  furniture  of  the  house,  and  although 
mirrors  may  be  so  attached  that  it  would  be  the  necessary 
inference  that  they  were  intended  to  form    part    of    the 


ANSWERS  301 

house,  we  think  no  such  inference  can  properly  be  drawn 
from  the  facts  of  the  present  case."  (Cranston  vs.  Beck, 
70  N,  J,  L.,  145;  1  Amer.  &  Eng.  Annot.  Cases,  686.) 

83.  Yes.  "The  contention  that  the  option  stipulated  in 
the  lease  is  a  nudum  pactum,  because  without  mutuality  or 
consideration,  would  have  merit,  if  such  stipulation  stood 
alone;  but  as  it  is  a  part  of  the  contract  it  cannot  be  dis- 
severed therefrom.  In  a  similar  case  this  court  held  that 
the  lease  of  the  property  was  a  sufficient  consideration  for  an 
option  to  purchase."  (Amiss  vs.  Witting 's  Executors,  121 
La.,  501;  15  Amer.  &  Eng.  Annot.  Cases,  379.) 

84.  No.  AVhere  a  vendor  sells  off  an  estate  in  lots,  with 
restrictions  upon  the  use  of  the  lots  sold,  he  will  lose  his 
right  in  equity  to  enforce  the  restrictions  against  one 
grantee,  if  he  has  knowingly  permitted  other  grantees  to 
violate  the  same  restrictions,  the  effect  of  which  violation  is 
to  abrogate  the  purpose  of  the  restriction  and  alter  the  gen- 
eral scheme  intended  to  be  conserved  by  it.  (Ocean  City 
Association  vs.  Chalfant,  65  N.  J.  Eg.,  156 ;  1  Amer.  &  Eng. 
Annot.  Cases,  601.) 

85.  No.  (Park  vs.  Preston,  108  N.  Y.,  434;  15  N.  E., 
705.) 

86.  No.  By  retaining  the  ticket  with  knowledge  of  its 
purport,  plaintiff  ratified  the  contract  according  to  its  terms. 
(Godfrey  vs.  Ohio  &  M.  Ry.  Co.,  116  Ind.,  30;  18  N.  E.,  61.) 

87.  No.  The  modern  doctrine  is  that  a  defendant  in  tres- 
pass can  always  excuse  himself  by  showing  that  the  injury 
complained  was  purely  accidental,  and  was  not  attributable 
to  any  fault  of  his.  (Holmes  vs.  Mather,  L.  R.,  10;  Exchs., 
261.) 

88.  Yes.  In  the  case  of  a  trespass  upon  real  property, 
the  wrong-doer  is  lia])le  for  all  the  consequences  which  nat- 
urally follow  from  his  wrongful  act,  which  are  not  too  re- 
mote.    (Guille  vs.  Swan,  19  Johns   (N.  Y.),  381.) 

89.  Yes.  The  principle  involved  is  the  same  as  in  the 
preceding  case.     (Eten  vs.  Luyster,  60  N.  Y.,  252.) 

90.  No.  It  was  held  that  there  was  no  negligence  ex- 
isting in  this  case,  in-asrauch  as  a  person,  of  ordinary  pru- 


302  putney's  bar  examination  review 

dence,  could  not  be  expected  to  foresee  harm  as  a  conse- 
quence of  the  course  of  conduct  which  was  pursued  by  the 
defendant.  (Hamraack  vs.  White,  11  C.  B.  N.  S.,  588 ;  103 
E.  C.  L.,  588.) 

91.  No.  The  same  reasoning  applies  as  in  the  preceding 
case.     (East  Indian  K.  Co.  vs.  Mnkerjee,  A.  C,  396.) 

92.  No.  The  mischief  in  question  was  not  of  such  a 
character  that  the  railway  company  could  be  expected  to 
foresee  and  guard  against  it.  (Daniel  vs.  Metropolitan  R. 
Co.,  L.  R.  5  n.  L.,  45.) 

93.  Yes.  AVhen  a  case  of  negligence  has  been  made  out, 
liability  extends  to  all  consequences  naturally  following 
therefrom.     (Harris  vs.  Mobbs,  3  Ex.  D.,  268.) 

9-4.  Yes.  It  was  held  that  the  loss  occasioned  by  the  fire 
was  attributable  to  the  negligent  management  of  the  train 
of  oil  cars  as  its  proximate  cause.  (Kuhn  vs.  Jewett,  32 
N.  J.  Eq.,  647.) 

95.  The  damage  in  this  case  was  not  attributable  to  the 
starting  of  the  boat  with  the  lame  horse  as  its  proximate 
cause,  and  there  could  be  no  recovery.  (^Morrison  vs.  Davis, 
20  Pa.  St.,  171.) 

96.  The  company  was  not  liable,  the  loss  of  the  glasses 
not  being  the  proximate  consequence  of  their  acts.  (Glover 
vs.  London,  etc.,  R.  Co.,  L.  R.,  3  Q.  B.,  25.) 

97.  Yes.  "In  order  that  a  negligent  act  or  negligent 
conduct  should  be  considered  the  legal  or  proximate  cause 
of  the  damage  complained  of,  it  is  not  essential  that  such 
act  or  conduct  should  be  the  sole  and  exclusive  cause  of  the 
damage  in  question.  Hence  the  negligence  of  A  may  be 
treated  as  a  proximate  cause  of  damage  to  B,  although  the 
negligence  of  a  third  person  may  also  concur  in  bringing 
about  the  mischief."  Street's  Foundations  of  Legal  Lia- 
bility, Vol.  1,  P.  122.     (Pastene  vs.  Adams,  49  Cal.,  87.) 

98.  Either  trespass  or  trespass  on  the  case  is  proper: 
trespass,  because  the  beasts  actually  came  upon  the  land; 
and  trespass  on  the  case,  because  of  the  negligence.  (Star 
vs.  Rookesby.  1  Salk.,  335.) 

99.  Yes.     Factors    of    aggravation   which    are    usually 


ANSWERS  303 

treated  as  supplying  a  l)asis  for  assessing  exemplary  dam- 
ages, in  addition  to  the  damages  for  the  legal  injury,  may 
be  considered  merely  as  aggravation  of  the  injury  itself. 
(Smith  vs.  lioleomb,  99  ]Mass.,  552.) 

100.  Yes.    (Keyse  vs.  Keyse,  11  P.  U.,  100.) 

101.  Yes.  "A  surface  location  might  be  made  in  such  an 
irregular  and  many-sided  shape  as  to  destroy  the  right  to  go 
beyond  the  surface  lines.  That  consequence,  however,  would 
not  be  because  the  end  lines  were  not  exactly  parallel,  but 
because  it  would  be  difficult,  if  not  impossible,  to  tell  which 
were  side  lines  and  which  were  end  lines. ' '  (Doe  vs.  Sanger, 
83  Cal.  203.) 

102.  No.  The  following  laws,  and  these  only,  are  ex  post 
facto  laws:  "First  every  law  that  makes  an  action  done  be- 
fore the  passing  of  the  law,  and  which  was  innocent  when 
done,  criminal,  and  punishes  such  action.  Second.  Every 
law  that  aggravates  a  crime,  or  makes  it  greater  than  it  was 
when  committed.  Third.  Every  law  that  changes  the  pun- 
ishment and  inflicts  a  greater  punishment  than  the  law  an- 
nexed to  the  crime  when  committed.  Fourth.  Every  law^  that 
alters  the  legal  rules  of  evidence,  and  receives  less  or  differ- 
ent testimony  than  the  law  required  at  the  time  of  commission 
of  the  offense  in  order  to  convict  the  offender."  (Calder  vs. 
Bull,  3  Dallas,  386.) 

103.  Yes.  Documents  are  "ancient"  if  30  years  old  when 
offered  in  evidence.    (Renter  vs.  Stuckart,  181  111.  529.) 

104.  Yes.  "Standard  price  lists  and  market  reports, 
shown  to  be  in  general  circulation  and  relied  on  by  the  com- 
mercial world  and  by  those  engaged  in  the  trade,  are  ad- 
missible as  evidence  of  market  values  of  articles  of  trade." 
(St.  Louis  and  San  Francisco  Railroad  Co.  vs.  Pearce  et  al. 
82  Ark.  353.  12  American  &  English  Annotated  Cases  125.) 

105.  Yes.  Involuntary  declarations  of  this  character  are 
properly  part  of  the  res  gestae.  (Galena  etc.  Ry.  Co.  vs. 
Fay,  16  111.,  558.) 

106.  No.  "Words  in  a  conveyance  or  devise  wdiich  merely 
state  the  purpose  for  which  the  property  is  to  be  used  do  not 


;iU4  putney's    bar    examination    KEVIKW 

create  a  coiulitiuiial  estate.     (Adams  vs.  First  Baptist  Church 
of  St.  Charles  et  al.  148  iMieh.  140.) 

107.  Yes,  A  mandatory  injunction  should  be  granted. 
"Clauses  of  'without  impeachment  of  waste'  never  were  ex- 
tended to  allow  the  very  destruction  of  the  estate  itself ;  but 
only  to  excuse  from  permissive  waste,  and  therefore  such  a 
clause  would  not  give  leave  to  sell  and  cut  down  the  trees 
which  were  the  ornament  or  shelter  of  his  houses,  much  less 
to  destroy  or  demolish  his  house."  (Vane  vs.  Lord  Barnard, 
Precedents  in  Chancery,  454 ;  2  Vernon,  738. 

108.  No.  This  was  not  a  proper  subject  upon  which  to 
introduce  expert  testimony.  The  court  in  its  decision  cited 
with  approval  the  following  statement  of  the  law  upon  the 
admissibility  of  expert  testimony.  ' '  It  may  be  broadly  stated 
as  a  general  proposition  that  there  are  two  classes  of  cases  in 
M^hich  expert  testimony  is  admissible.  To  the  one  class  be- 
long those  cases  in  which  the  conclusions  to  be  drawn  by  the 
jury  depend  upon  the  existence  of  facts  which  are  not  com- 
mon knowledge  and  which  are  peculiarly  within  the  knowl- 
edge of  men  whose  experience  or  study  enables  them  to  speak 
with  authority  upon  the  subject.  If,  in  such  cases,  the  jury 
with  all  the  facts  before  them  can  form  a  conclusion  thereon, 
it  is  their  sole  province  to  do  so.  In  the  other  class  we  find 
those  cases  in  which  the  conclusions  to  be  drawn  from  the 
the  facts  stated  as  well  as  knowledge  of  the  facts  themselves 
depend  upon  professional  or  scientific  knowledge  or  skill  not 
within  the  range  of  ordinary  training  or  intelligence.  In  such 
cases,  not  only  the  facts,  but  the  conclusions  to  which  they 
lead,  may  be  testified  to  by  qualified  experts."  (Welle  vs. 
Celluloid  Co.  79  N.  E.  6.) 

109.  Yes.  (Pittsburg,  C,  C.  &  St.  L.  Hy.  Co.  vs.  Bovard. 
223  111.  176;  79  N.  E.  128.) 

110.  No.  "With  the  exception  of  the  copyrighted  articles, 
the  entire  literary  mater  of  'The  P^ncyelopedia  Britannica. 
Ninth  Edition'  is  public  property  in  this  country  at  least,  and 
a  rival  publisher  has  the  legal  right  to  make  any  use  of  it  he 
sees  fit.  He  may  use  any  part  of  it  or  all  of  it,  and  call  it  by 
what  name  he  prefers.    Neither  the  author  or  proprietor  of  a 


ANSWERS  305 

literary  work  has  any  property  in  its  name.  It  is  a  term  of 
description  which  serves  to  identify  the  worlc ;  but  any  other 
person  can  with  impunity  adopt  it  and  ai)ply  it  to  any  other 
book  or  to  any  trade  commodity,  provided  he  does  not  use  it 
as  a  false  token  to  induce  the  public  to  believe  that  the  thing 
to  which  it  is  applied  is  the  identical  thing  which  it  originally 
designated.  If  literary  property  could  be  protected  upon  the 
theory  that  the  name  by  which  it  is  christened  is  equivalent 
to  a  trade-mark,  there  would  be  no  necessity  for  copyright 
Jaws."     (Black  vs.  Ehrich,  44  Fed.  793.) 

111.  Yes.     (Gibbs  vs.  Mennard,  6th  Page  (N.  Y.),  258.) 

112.  The  court  held  in  this  case  as  follows:  "1.  If  a  man 
seised  of  lands  in  fee,  makes  a  feoffment  to  the  use  of  such 
person  and  persons,  and  of  such  estate  and  estates  as  he  shall 
appoint  by  his  will,  that  by  operation  of  law  the  use  doth 
vest  in  the  feoffer,  and  he  is  seised  of  a  qualified  fee,  that  is 
to  say,  till  declaration  and  limitation  be  made  according  to  his 
poAver.  When  a  man  makes  a  feoffment  to  the  use  of  his  last 
will,  he  has  the  use  in  the  meantime.  2.  If  in  such  case  the 
feoffer  by  his  will  limits  estates  according  to  his  power  re- 
served to  him  on  the  feoffment  there  the  estates  shall  take 
effect  by  force  of  the  feoffment,  and  the  use  is  directed  by 
the  will ;  so  that  in  such  case  the  will  is  but  declaratory :  but 
if  in  such  case  the  feoffer  by  his  will  in  writing  devises  the 
land  itself,  as  owner  of  the  land,  without  any  reference  to  his 
authority,  there  it  shall  pass  by  the  will,  for  the  testator  had 
an  estate  devisable  in  him,  and  power  also  to  limit  an  use, 
and  he  had  election  to  pursue  which  of  them  he  would ;  and 
when  he  devised  the  land  itself  without  any  reference  to  his 
authority  or  poM^er,  he  declared  his  intent,  to  devise  an  es- 
tate as  owner  of  the  land,  by  his  will,  and  not  to  limit  an  use 
according  to  his  authority;  and  in  such  case,  the  land  being 
held  in  capite,  the  devise  is  good  for  two  parts,  and  void  for 
the  third  part.  For  as  the  owner  of  the  land  he  cannot  dis- 
pose of  more ;  and  in  such  case  the  devise  cannot  take  effect 
by  the  will  for  two  parts,  and  by  the  feoffment  for  the  third 
part :  for  he  made  his  devise  as  owner,  and  not  according  to 
his  authority;  and  his  devise  shall  be  of  as  much  vnliditv  as 


'S06  putney's  bar  examination  keview 

the  will  of  every  other  owner  having  any  land  held  in  capite. 
3.  If  a  man  makes  a  feoffment  in  fee  of  lands  held  in  capite, 
to  the  use  of  his  last  will,  although  he  devises  the  land  with 
reference  to  the  feoffment,  yet  the  will  is  void  for  a  third 
part ;  for  the  feoffment  to  the  use  of  his  will,  and  to  the  use  of 
him  and  his  heirs  is  all  one.  4.  In  the  case  at  bar,  when  Clem- 
ent Harwood  had  conveyed  tAvo  parts  to  the  use  of  his  wife  by 
act  executed,  he  would  not  as  owner  of  the  land  devise  any 
part  of  the  residue  by  his  will,  so  that  he  had  no  power  to 
devise  any  part  thereof  as  owner  of  the  land,  and  because  he 
had  not  elected  as  in  the  case  put  before,  either  to  limit  it  ac- 
cording to  his  power,  or  to  devise  it  as  owner  of  the  land  (for 
in  the  case  at  bar,  having,  as  owner  of  the  land,  conveyed 
two  parts  to  the  use  of  his  wife  (ut  supra)  he  could  not  make 
and  devise  (thereof)  therefore  the  devise  ought  of  necessity 
to  enure  as  a  limitation  of  an  use,  or  otherwise  the  devise 
shall  be  utterly  void;  and  judgment  was  given  accordingly 
for  the  plaintiff  for  the  whole  land  so  devised."  (Sir  Ed- 
wards Clere's  Case,  C  Co.  17  b.  Gray's  cases  on  Real  Property, 
1st  Edition  Vol.  1  P.  502.) 

113.  "The  :Master  of  the  Rolls  said,  that  the  timber  may 
be  considered  under  2  denominations,  (to  wit)  such  as  was 
thriving,  and  not  fit  to  be  felled ;  and  such  as  was  unthriving, 
and  what  a  prudent  man  and  a  good  husband  would  fell,  etc. 
And  ordered  the  INIaster  to  take  an  account,  etc.  and  the  value 
of  the  former  which  was  waste,  and  therefore  belongs  to  the 
plaintiff,  who  is  next  in  remainder  of  the  inheritance,  is  to  go 
to  the  plaintiff,  and  the  value  of  the  other  is  to  be  laid  out 
according  to  the  settlement,  etc.  But  as  to  repairs,  the  court 
never  interposes  in  case  of  permissive  waste  either  to  prohibit 
or  give  satisfaction,  as  it  does  in  case  of  Avilful  waste;  and 
where  the  court  having  jurisdiction  of  the  principal,  viz.  the 
prohibiting,  it  does  in  consequence  give  relief  for  waste  done, 
either  by  way  of  account  as  for  timber  felled,  or  by  obliging 
the  party  to  rebuild,  etc.  as  in  ease  of  houses,  etc,  and  men- 
tioned Lord  Barnard's  Case,  as  to  Raby  Castle,  2  Vern.  But 
as  to  the  repairs  it  was  objected,  that  the  plaintiff  bore  had 
no  remedy  at  law,  by  reason  of  the  estate  for  life  to  the  trus- 


ANSWKKS  307 

tees  mean  between  plaintilf's  remainder  in  tail  and  defend- 
ant's estate  for  life,  and  that  therefore  equity  ought  to  inter- 
pose, etc.  and  that  this  was  a  point  of  consequence.  Sed  non 
allocatur."  (Lord  Castleman  vs.  Lord  Cranen,  22  Vin.  Ab. 
323,  pi.  11.    Gray's  Cases  on  Real  Property,  Vol.  1,  P.  577.) 

114.  Yes.  The  decree  providing  for  the  sale  is  absolutely 
void  on  account  of  the  nonjoinder  of  the  wife. 

115.  The  deed  may  be  considered  as  a  mortgage  and  fore- 
closed. (Abbott  vs.  Sanders,  80  Vt.  179.)  (NOTE.  In  some 
of  the  other  states  a  different  proceeding  is  held  to  be  the 
proper  remedy.  Thus  in  Illinois,  the  proper  proceedings 
would  be  by  suit  in  equity  to  set  aside  the  deed ;  and  in  Wis- 
consin, the  proper  course  is  a  re-entry  by  the  grantor  for 
breach  of  a  condition  subsequent.) 

116.  No.  Misrepresentations  as  to  the  wealth,  social 
standing,  or  health,  have  always  been  held  insufficient 
grounds  upon  which  to  base  an  annullment  of  a  marriage 
(Lyon  vs.  Lyon,  230  111.  366.) 

117.  Yes.  It  is  against  public  policy  to  allow  a  carrier  to 
exempt  itself  from  liability  for  damage  occasioned  by  its  own 
negligence.  (St.  Louis,  Iron  iMountain  &  Southern  Railway 
Co.,  vs.  Pitcock,  82  Ark.  441.) 

118.  Yes.  The  sale  took  place  in  Minnesota  and  was  there^ 
fore  legal.     (Frankel  vs.  Hillier,  16  N.  D.  387.) 

119.  No.     (Cochran  vs.  Zaehery.  137  Iowa  585.) 

120.  No.  When  a  person  is  tried  for  any  crime,  it  is  never 
a  defense  to  prove  that  others  are  guilty  of  the  same  crime. 
(Commonwealth  vs.  Perry,  139  Mass.,  29  N.  E.  656.) 

121.  The  presumption  is  that  a  telegram  properly  ad- 
dressed, and  delivered  to  a  telegraph  company  for  trans- 
mission, is  properly  received.  The  presumption  in  such  a 
case  is  similar  to  that  in  the  case  cf  a  letter  properly  ad- 
dressed and  mailed,  although  not  quite  so  strong.  (Oregon 
Steamship  Co..  vs.  Otis.  100  N.  Y.  446;  3  N.  E.  485.) 

122.  No.  The  guarnnty  of  "life,  liberty  and  property" 
cannot  be  held  to  include  the  right  of  corporations  to  combine 
together  to  fix  rates,  etc.  (State  vs.  Firemen's  Ins.  Co.  43 
L.  R.  A.  363.) 


308  putney's  bar  examination  review 

123.  No.  (Birmingham  jMatiiie.'  Club  vs.  IVIeCart}',  152 
Ala.  571.) 

124.  Yes.  In  an  action  for  waste  it  is  sufficient  if  the  per- 
son bringing  the  action  has  an  interest  in  the  property  at  the 
time  the  waste  was  committed.  (Hoolihan  vs.  Hoolihan,  193 
N.  Y.  197.) 

125.  Yes.     (In  re  Robinson,  48  Wash.  153.) 

126.  Yes.  All  of  this  evidence  has  a  direct  bearing  upon 
the  question  of  the  contributory  negligence  of  the  piaiiUiflT. 
(Baltimore  &  Ohio  Southwestern  Rd.  Co.  vs.  Mullen,  217  111. 
203.) 

127.  The  evidence  as  to  the  nearsightedness  and  the  fee- 
bleness of  the  testator,  while  admissible  was  entitled  to  very 
little  weight.  The  remaining  evidence  which  only  tended  to 
blacken  the  character  of  the  testator  was  inadmissible.  (Gra- 
ham vs.  Deuterman,  217  111.  235.) 

128.  Yes.  They  were  entries  made  by  a  person,  deceased 
at  the  time  of  the  trial  against  his  own  interest.  (Middleton 
vs.  Melton,  10  B.  &  C.  317.) 

129.  Under  the  rule  in  Shelly 's  ease,  the  widow  takes  a 
fee  simple  estate.     (Rissman,  Admv.  vs.  Wierth,  220  111.  181.) 

130.  The  children  of  the  testator,  mentioned  in  this  devise, 
take  an  estate  in  fee  simple.  "The  term  'children'  is  pri- 
marily a  word  of  purchase,  and  is  not  to  be  construed  as 
equivalent  to  'heirs'  in  the  absence  of  other  words  or  circum- 
stances showing  it  to  have  been  used  in  that  sense,  but  where 
there  are  other  words  in  the  will  show^ing  that  the  word 
'children'  was  used  in  the  sense  of  'heirs'  the  term  will  be 
construed  as  a  word  of  limitation  equivalent  to  'heirs'.  The 
words  'heirs',  'issue'  and  'children',  when  found  in  wills,  may 
be  construed  interchangeable  when  necessary  to  effectuate  the 
intention  of  the  testator."  (Strawbridge  vs.  Strawbridge, 
220  111.  63.) 

131.  The  statute  was  unconstitutional  as  being  in  viola- 
tion of  the  constitutional  guaranty  of  freedom  of  speech. 
(Ex  parte  Harrison.  212  Mo.  88;  American  &  Eng.  Annotated 
Cases.  Vol.  XV,  P.  1) 

132.  As  against  the  creditors  of  the  creditors  of  the  selling 


AXSWERS  309 

corporation,  the  purchasing  corporation  is  not  a  purchaser 
in  good  faitli,  and  the  creditors  of  the  selling  corporation  may 
treat  the  purchasing  corporation  as  a  fraudulent  vendee. 
(Couse  vs.  Columbia  J'owder  :\Ifg.  Co.  33  Atl.  '2!)7.) 

133.  The  c(miplainants  should  bring  a  bill  of  revivor 
against  the  state  auditor  and  treasurer.  (Hemingway  vs. 
Stansell,  106  U.  S.  399.) 

134.  By  means  of  an  equitable  proceeding  in  the  Federal 
Court  having  jurisdiction  of  the  foreclosure  proceedings. 
(Freman  vs.  Howe,  24  How.  450.) 

135.  No.  While  a  telegram  countermanding  a  check  may 
reasonably  be  acted  upon  by  a  banker,  still  an  unauthenti- 
cated  telegram  is  not  a  sufficient  countermand  of  the  check 
so  as  to  render  the  bank  liable  for  its  payment.  (Curtice  vs. 
London  City  &  :\Iidland  Bank,  Limited,  I  K.  B.  293.) 

136.  The  contracts  are  not  rendered  void,  or  even  void- 
able, but  are  merely  unenforceable  by  the  corporation  in  the 
state  courts  until  the  corporation  complies  with  the  provisions 
of  the  state  statutes.  (National  Fertilizer  Company  vs.  Fall 
River  Five  Cent  Savings  Bank  et  al,  196  Mass.  458.) 

137.  No.  The  court  cites  the  case  of  Abadie  vs.  Berges  as 
follows:  "A  landlord  cannot  be  held  to  warranty  and  indem- 
nity against  the  'acts  of  the  law',  in  the  absence  of  express 
stipulation  to  that  end.  Should  a  tenant  sustain  damage  in 
consequence  of  a  constitutional  police  legislation  adopted  sub- 
sequently to  his  contract  of  lease,  such  as  the  'Sunday  law.' 
which  forbids  the  use  of  the  property  rented,  to  a  particular 
use  to  which  the  lessee  applies  it.  in  a  special  way  and  on  a 
special  day,  such  damage  is  injuria  sine  damno,  which  is  not 
compensable.  Such  legislation  could  have  been  foreseen,  and 
does  not  impair  rights  under  the  contract."  (Lawrence  vs. 
White,  131  Oa.  840.) 

138.  No.  The  toAvn  has  i)een  guilty  of  such  extreme  laches 
that  a  court  of  equity  will  not  decree  the  cancellation  of  the 
bonds,  even  although  the  delay  has  not  continued  for  the  full 
statutory  period  of  limitation  of  equitable  actions.  (Calhoun 
vs.  Delhi  &  :\r.  E.  Co.  121  N.  Y.  69 :  24  N.  E.  27.) 

139.  No.     A  father  may  emancipate  liis  child   in   which 


31U  I'U'i'NKV'.S    HAH    EXAMINATION    UKVIEW 

case  the  child  would  become  competent  to  contract  as  if  of 
full  age.     (Kain  vs.  Larkin,  30  iN.  E.  105 .  131  N.  Y.  300.) 

140.  No.  (iVhiryland  Casualty  Co.  vs.  Hudgins,  97  Texas 
124.) 

141.  Yes.  The  nuisance  must  be  proved  to  have  existed 
at  the  time  the  suit  was  couunenced  (unless  the  bill  proceeds 
on  the  theory  of  a  threatened  nuisiince)  ;  but  a  cessation  of 
the  nuisance,  which  may  be  intended  to  be  only  a  temporary 
one,  after  the  suit  has  been  commenced,  will  not,  of  necessity, 
prevent  the  court  from  granting  the  injunction.  (State  vs. 
City  Club,  65  S.  E.  730,  83  S.  C.  509.) 

142.  Yes.  No  change  in  "interest,  title,  or  possession," 
has  taken  place.  (Garner  vs.  Milwaukee  Mechanics'  Insur- 
ance Company,  73  Kan.  127.) 

143.  No.    (Statevs.  Hodge,  142  N.C.  665.) 

144.  No.  Unless  such  right  has  been  acquired  by  grant  or 
prescription,  a  land  owner  has  no  legal  right  to  the  uninter- 
rupted access  of  light  and  air  to  his  property,  across  the  land 
of  his  neighbor.  (Kablegard  et  al.  vs.  Hale  et  al.  60  W.  Va. 
37.) 

145.  No.  The  recent  decisions  hold  that  when  a  municipal 
corporation  lawfully  engages  in  the  business  of  operating  an 
electric  light  plant,  for  the  purpose  of  providing  its  own 
light  and  also  to  sell  light  to  the  citizens  of  the  corporation, 
such  municipal  corporation  is  liable  for  damages  for  its  neg- 
ligence, under  the  same  conditions  nnd  to  the  same  degree  as 
a  private  corporation  or  an  individual  engaged  in  the  same 
line  of  business.  (Davoust  vs.  City  of  Alameda,  149  Cal.  69. 
See  also  note  to  this  case  in  American  &  Eng.  Annotated 
Cases,  Vol.  IX,  P.  851.) 

146.  This  is  a  case  for  the  application  of  the  equitable 
doctrine  of  election.  If  B —  takes  the  property  left  to 
him  by  A's  will,  he  cannot  assert  any  claim  to  the  property 
left  to  C—  by  the  same  will.  (Bletson  vs.  Stoops,  186  N.  Y. 
456.) 

147.  For  the  defendant.  The  books  are  not  necessaries, 
and  a  promise  by  a  husband  to  pay  a  debt  due  by  his  wife,  for 
which  he  is  not  already  responsible,  like  any  other  contract 


ANSWERS  311 

to  answer  for  the  debt  or  default  of  another,  must  be  in  writ- 
ing. (Based  upon  part  of  the  facts  in  case  of  Shuman  vs. 
Steinel,  129  Wis.  422.) 

148.  Yes.  The  pedigree  and  ancestry,  either  of  a  man  or 
of  horses,  cattle,  or  dogs,  may  be  proved  by  common  or  gen- 
eral reputation.     (Citizens'  Co.  vs.  Dew^,  100  Tenn.  317:) 

149.  No.  The  contract  is  one  which  comes  under  the  stat- 
ute of  frauds,  and  the  fact  that  the  request  from  F —  to  M — 
was  in  writing  does  not  satisfy  the  requirements  of  the  stat- 
ute.    (Chicago  Heights  Lumber  Co.  vs.  Miller,  219  111.  79.) 

150.  The  question  of  deciding  the  competency  of  the  wit- 
ness is  for  the  court,  and  in  deciding  that  question  the  court 
is  not  only  the  judge  of  the  law,  but  also  of  the  questions  of 
fact  necessary  to  be  determined.  (Hoch  vs.  Illinois,  219  111. 
264.) 


FIFTY  LEGAL  MAXIMS. 

(Note. — The  principal  equitable  maxims  are  given  in  the 
Chapter  on  Equity  Jurisprudence.) 

1.  The  act  of  God  is  so  treated  by  the  law  as  to  affect 
no  one  injuriously. 

2.  In  law  the  immediate,  not  the  remote,  cause  of  any 
event  is  regarded. 

3.  Ignorance  of  fact  excuses — ignorance  of  law  does  not 
excuse. 

4.  That  to  which  a  person  assents  is  not  esteemed  in  law 
an  injury. 

5.  No  man  should  take  advantage  of  his  own  wrong. 

6.  Acts  indicate  the  intention. 

7.  It  is  a  rule  of  law  that  a  man  shall  not  be  twice  vexed 
for  one  and  the  same  cause. 

8.  Enjoy  your  own  property  in  such  a  manner  as  not  to 
injure  that  of  another  person. 

1).     Whatever  is  affixed  to  the  soil  belongs  thereto. 

10.  He  who  possesses  land  possesses  also  all  which  is 
above  it. 

11.  x\lienation  is  favored  by  the  law  rather  than  accumu- 
lation. 

12.  An  assignee  is  clothed  with  the  rights  of  his  princi- 
pal. 

13.  Whoever  grants  a  thing  is  supposed  also  tacitly  to 
grant  that  without  which  the  grant  itself  would  be  of  no 
effect. 

14.  The  incident  shall  pass  by  the  grant  of  the  principal 
but  not  the  principal  by  the  grant  of  the  incident. 

15.  It  is  the  consent  of  the  parties,  not  their  concul)inage, 
which  constitutes  a  valid  marriage. 

16.  No  one  can  be  heir  during  the  life  of  his  ancestor. 

17.  A  liberal  construction  should  be  put  upon  written 
instruments,  so  as  to  uphold  them,  if  possible,  and  carry 
into  effect  the  intention  of  the  parties. 

313 


314  putney's    bar    examination    KEVIEW 

18.  A  passage  will  be  best  interpreted  by  referenee  to 
that  which  precedes  and  follows  it. 

19.  The  words  of  an  instrument  shall  be  taken  most 
strongly  against  the  party  employing  them. 

20.  Latent  ambiguity  may  be  supplied  by  evidence ;  for 
an  ambiguity  which  arises  by  proof  of  an  extrinsic  fact 
may,  in  the  same  manner,  be  removed. 

21.  That  is  sufficiently  certain  Avhich  can  be  made  cer- 
tain. 

22.  Surplusage  does  not  vitiate  that  which  in  other  re- 
spects is  good  and  valid. 

23.  Mere  false  tlescription  does  not  make  an  instrument 
inoperative. 

24.  The  express  mention  of  one  thing  implies  the  exclu- 
sion of  another. 

25.  Words  to  which  reference  is  made  in  an  instrument 
have  the  same  effect  and  operation  as  if  they  were  inserted 
in  the  clause  referring  to  them. 

26.  Any  one  may,  at  his  pleasure,  renounce  the  benefit 
of  a  stipulation  or  other  right  introduced  entirely  in  his 
own  favor. 

27.  Tie  who  derives  the  advantage  ought  to  sustain  the 
burden. 

28.  A  right  of  action  cannot  arise  out  of  fraud. 

29.  No  cause  of  action  arises  from  a  bare  promise. 

30.  He  who  does  an  act  through  the  medium  of  another 
party  is  in  law  considered  as  doing  it  himself. 

31.  A  subsequent  ratification  has  a  retrospective  effect, 
and  is  equivalent  to  a  prior  command. 

32.  Every  presumption  is  to  be  made  against  a  wrong- 
doer. 

33.  All  acts  are  presumed  to  have  been  rightfully  and 
regularly  done. 

34.  A  transaction  between  two  parties  ought  not  to  op- 
erate to  the  disadvantage  of  a  third. 

35.  No  man  can  be  compelled  to  criminate  himself. 

36.  With  respect  to  private  rights,  necessity  privileges  a 
person  acting  under  its  influences. 


FIFTY    LEGAL    MAXIMS  315 

o7.  The  laws  are  adapted  to  those  cases  which  most  fre- 
(luently  occur. 

38.  Where  a  person  does  an  act  by  command  of  one  ex- 
ercising judicial  authority,  the  law  will  not  suppose  that  he 
acted  from  any  w^rongful  or  improper  motive,  for  it  was  his 
duty  to  obey. 

39.  It  is  the  office  of  the  judge  to  instruct  the  jury  in 
points  of  laM' — of  the  jury  to  decide  on  matters  of  fact. 

40.  No  man  should  be  condemned  unheard, 

41.  A  legal  fiction  is  always  consistent  with  equity. 

42.  The  acquiescence  of  a  party  who  miglit  take  advan- 
tage of  an  error  obviates  its  effect. 

43.  The  law  does  not  concern  itself  about  trifles, 

44.  Like  reason  dotli  make  like  law, 

45.  A  matter,  the  validity  of  which  is  at  issue  in  legal 
proceedings,  cannot  be  set  up  as  a  bar  thereto. 

46.  That  Avhich  was  originally  void,  does  not  by  lapse 
of  time  become  valid." 

47.  The  law  does  not  seek  to  compel  a  man  to  do  that 
which  he  cannot  possibly  perform. 

48.  The  bestower  of  a  gift  has  a  right  to  regulate  its 
disposal. 

49.  Jn  the  absence  of  ambiguity,  no  exposition  shall  be 
made  which  is  opposed  to  the  express  words  of  the  instru- 
ment, 

50.  General  words  may  be  restrained  according  to  the 
subject  matter  or  person  to  which  they  relate. 


APPENDIX  A. 

Important  Dates  in  English  Legal  History. 

^lagna  Charta  1215 

Statute  of  Westminster  II    1285 

Statute  of  De  Donis    1285 

Statute  of  Quia  Emptores    1290 

Statute  of  Uses    1535 

Statute  of  Wills    1540 

Petition  of  Right    1628 

Statute  of  Frauds  - 1676 

Habeas  Corpus  Act    1679 

Bill  of  Rights    1689 


317 


APPENDIX  B. 

CONSTITUTION  OF  THE  UNITED  STATES. 

We,  the  People  of  the  United  States,  in  order  to  form 
a  more  perfect  union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defence,  promote  the 
general  welfare,  and  secure  the  blessings  of  liberty  to  our- 
selves and  our  posterity,  do  ordain  and  establish  this  Con- 
stitution for  the  United  States  of  America. 

Article  I. 

Section  I.  All  legislative  powers  herein  granted  shall 
be  vested  in  a  Congress  of  the  United  States,  which  shall 
consist  of  a  Senate  and  House  of  Representatives. 

Section  II. — 1.  The  House  of  Representatives  shall  be 
composed  of  members  chosen  every  second  year  by  the 
people  of  the  several  states,  and  the  electors  in  each  state 
shall  have  the  qualifications  requisite  for  electors  of  the 
most  numerous  branch  of  the  State  Legislature. 

2.  No  person  shall  be  a  representative  who  shall  not 
have  attained  to  the  age  of  twenty-five  years,  and  been 
seven  years  a  citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  inhaliitant  of  that  state  in  which 
he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  states  which  may  be  included  within 
this  Union,  according  to  their  respective  numbers,  which 
shall  be  determined  by  adding  to  the  whole  number  of  free 
persons,  including  those  bound  to  service  for  a  term  of 
years,  and  excluding  Indians  not  taxed,  three-fifths  of  all 
other  persons.  The  actual  enumeration  shall  be  made  with- 
in three  years  after  the  first  meeting  of  the  Congress  of 
the  United  States,  and  within  every  subsequent  term  of 
ten  years,  in  such  manner  as  they  shall  by  law  direct.  The 
number  of  representatives  shall  not  exceed  one  for  every 

319 


320  putney's  bar  examination  revieav 

thirty  thousand,  but  each  state  shall  have  at  least  one  rep- 
resentative; and  until  such  enumeration  shall  be  made,  the 
state  of  New  Hampshire  shall  be  entitled  to  choose  three ; 
Massachusetts,  eight;  Khode  Island  and  Providence  Planta- 
tions, one ;  Connecticut,  five ;  New  York,  six ;  New  Jersey, 
four ;  Pennsylvania,  eight ;  Delaware,  one ;  Maryland,  six ; 
Virginia,  ten ;  North  Carolina,  five ;  South  Carolina,  five ; 
and  Georgia,  three. 

4.  When  vacancies  happen  in  the  representation  from 
any  state,  the  executive  authority  thereof  shall  issue  writs 
of  election  to  fill  such  vacancies. 

5.  The  House  of  Representatives  shall  choose  their 
Speaker  and  other  officers;  and  shall  have  the  sole  power  of 
impeachment. 

Section  III. — 1.  The  Senate  of  the  United  States  shall 
be  composed  of  two  senators  from  each  state,  chosen  by 
the  Legislature  thereof,  for  six  years ;  and  each  senator 
shall  have  one  vote. 

2.  Immediately  after  they  shall  be  assembled  in  conse- 
quence of  the  first  election,  they  shall  be  divided  as  equally 
as  may  be  into  three  classes.  The  seats  of  the  senators  of 
the  first  class  shall  be  vacated  at  the  expiration  of  the 
second  year;  of  the  second  class,  at  the  expiration  of  the 
fourth  year;  and  of  the  third  class,  at  the  expiration  of 
the  sixth  year,  so  that  one-third  may  be  chosen  every  sec- 
ond year;  and  if  vacancies  happen  by  resignation,  or  other- 
wise, during  the  recess  of  the  Legislature  of  any  state,  the 
executive  thereof  may  make  temporary  appointments  until 
the  next  meeting  of  the  Legislature,  which  shall  then  fill 
such  vacancies. 

3.  No  person  shall  be  a  senator  who  shall  not  have  at- 
tained to  the  age  of  thirty  years,  and  been  nine  years  a 
citizen  of  the  United  States,  and  who  shall  not,  when  elect- 
ed, be  an  inhabitant  of  that  state  for  which  he  shall  be 
chosen. 

4.  The  Vice-President  of  the  United  States  shall  be 
president  of  the  Senate,  but  shall  have  no  vote,  unless  they 
be  equally  divided. 


APPENDIX    a  321 

5.  The  Senate  shall  choose  their  other  officers,  and  also 
a  president  pro  tempore,  in  the  absence  oi"  the  Vice-Presi 
dent,  or  when  he  shall  exercise  the  office  of  President  oi 
the  United  States. 

6.  The  Senate  shall  have  the  sole  power  to  try  all  im- 
peachments, when  sitting  for  that  purpose,  they  shall  be 
on  oath  or  affirmation.  When  the  President  of  the  United 
States  is  tried,  the  Chief-Justice  shall  preside;  and  no  per- 
son  shall  be  convicted  wdthout  the  concurrence  of  two- 
thirds  of  the  members  present. 

7.  Judgment  in  cases  of  impeachment  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust,  or  profit  under 
the  United  States;  but  the  party  convicted  shall  neverthe- 
less be  liable  and  subject  to  indictment,  trial,  judgment, 
and  punishment,  according  to  law. 

Section  IV. — 1.  The  times,  places,  and  manner  of  hold- 
ing elections  for  senators  and  representatives  shall  be  pre- 
scribed in  each  state  by  the  Legislature  thereof;  but  the 
Congress  may  at  any  time,  by  law,  make  or  alter  such 
regulations,  except  as  to  the  places  of  choosing  senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every 
year,  and  such  meeting  shall  be  on  the  first  ^Monday  in 
December,  unless  they  shall  by  law  appoint  a  different  day. 

Section  V. — 1.  Each  house  shall  be  the  judge  of  the 
elections,  returns,  and  qualifications  of  its  own  members, 
and  a  majority  of  each  shall  constitute  a  quorum  to  do 
business;  but  a  smaller  number  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  attendance  of 
absent  members,  in  such  manner,  and  under  such  penalties, 
as  each  house  may  provide. 

2,  Each  house  may  determine  the  rules  of  its  proceed- 
ings, punish  its  members  for  disorderly  behavior,  and,  with 
the  concurrence  of  two-thirds,  expel  a  member. 

3.  Each  house  shall  keep  a  journal  of  its  proceedings, 
and  from  time  to  time  publish  the  same,  excepting  such 
parts  as  may  in  their  judgment  require  secrecy,  and  the 
yeas  and  nays  of  the  members  of  either  house  on  any  ques- 


322  putney's  bar  examination  review 

tion  shall,  at  the  desire  of  one-fifth  of  those  present,  be 
entered  on  the  journal. 

4.  Neither  house,  during  the  session  of  Congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  place  than  that  in  which  the 
two  houses  shall  be  sitting. 

Section  VI. — 1.  The  senators  and  representatives  shall 
receive  a  compensation  for  their  services,  to  be  ascertained 
by  law,  and  paid  out  of  the  treasury  of  the  United  States. 
They  shall  in  all  cases,  except  treason,  felony,  and  breach 
of  the  peace,  be  privileged  from  arrest  during  their  attend- 
ance at  the  session  of  their  respective  houses,  and  in  going 
to  and  returning  from  the  same;  and  for  any  speech  or 
debate  in  either  house,  they  shall  not  be  questioned  in  any 
other  place. 

2.  No  senator  or  representative  shall,  during  the  time 
for  which  he  was  elected,  be  appointed  to  any  civil  office 
under  the  authority  of  the  United  States,  which  shall  have 
been  created,  or  the  emoluments  whereof  shall  have  been 
increased,  during  such  time ;  and  no  person  holding  any 
office  under  the  United  States  shall  be  a  member  of  either 
house  during  his  continuance  in  office. 

Section  VII. — 1.  All  bills  for  raising  revenue  shall  orig- 
inate in  the  House  of  Representatives ;  but  the  Senate  may 
propose  or  concur  with  amendments,  as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  House  of  Rep- 
resentatives and  the  Senate,  shall,  before  it  become  a  law, 
be  presented  to  the  President  of  the  United  States ;  if  he 
approve,  he  shall  sign  it,  but  if  not,  he  shall  return  it,  with 
his  objections,  to  that  house  in  which  it  shall  have  orig- 
inated, who  shall  enter  the  objections  at  large  on  their 
journal,  and  proceed  to  reconsider  it.  If  after  such  recon- 
sideration, two-thirds  of  that  house  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the 
other  house,  by  which  it  shall  likewise  be  reconsidered, 
and  if  approved  by  two-thirds  of  that  house,  it  shall  be- 
come a  law.  But  in  all  such  cases  the  votes  of  both  houses 
shall  be  determined  by  yeas  and  nays,  and  the  names  of  the 
persons  voting  for  and  against  the  bill  shall  be  entered  on 


APPENDIX    B  323 

the  journal  of  each  house  respectively.  If  any  bill  shall 
not  be  returned  by  the  President  within  ten  days  (Sunday 
excepted)  after  it  shall  have  been  presented  to  him,  the 
same  shall  be  a  law,  in  like  manner  as  if  he  had  signed  it, 
unless  the  Congress  by  their  adjournment  prevent  its  re- 
turn, in  which  case  it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote  to  which  the  con- 
currence of  the  Senate  and  House  of  Representatives  may 
be  necessary  (except  on  a  question  of  adjournment)  shall 
be  presented  to  the  President  of  the  United  States;  and 
before  the  same  shall  take  effect,  shall  be  approved  by  him, 
or  being  disapproved  by  him,  shall  be  repassed  by  two- 
thirds  of  the  Senate  and  House  of  Representatives,  accord- 
ing to  the  rules  and  limitations  prescribed  in  the  case  of 
a  bill. 

Section  VIII. — 1.  The  Congress  shall  have  power  to  lay 
and  collect  taxes,  duties,  imposts,  and  excises,  to  pay  the 
debts  and  provide  for  the  common  defense  and  general 
w^elfare  of  the  United  States;  but  all  duties,  imposts,  and 
excises  shall  be  uniform  throughout  the  United  States ; 

2.  To  borrow  money  on  the  credit  of  the  United  States; 

3.  To  regulate  commerce  with  foreign  nations,  and 
among  the  several  states,  and  with  the  Indian  tribes ; 

4.  To  establish  an  uniform  rule  of  naturalization,  and 
uniform  laws  on  the  subject  of  bankruptcies  throughout 
the  United  States ; 

5.  To  coin  money,  regulate  the  value  thereof,  and  of 
foreign  coin,  and  fix  the  standard  of  weights  and  meas- 
ures ; 

6.  To  provide  for  the  punishment  of  counterfeiting  the 
securities  and  current  coin  of  the  United  States; 

7.  To  establish  post-offices  and  post-roads; 

S.  To  promote  the  progress  of  science  and  useful  arts, 
by  securing,  for  limited  times,  to  authors  and  inventors 
the  exclusive  right  to  their  respective  writings  and  dis- 
coveries ; 

9.  To  constitute  tribunals  inferior  to  the  Supreme 
Court ; 

10.  To  define  and  punish  piracies  and   felonies  commit- 


324  i*utney's  bau  examination  review 

ted  on  the  high  seas,   and  offenses  against  the  law  of  na- 
tions ; 

11.  To  declare  war,  grant  letters  of  marque  and  re- 
prisal, and  make  rules  concerning  captures  on  land  and 
water ; 

12.  To  raise  and  support  armies,  but  no  appropriation 
of  money  to  that  use  shall  be  for  a  longer  term  than  two 
years ; 

13.  To  provide  and  maintain  a  navy ; 

14.  To  make  rules  for  the  government  and  regulation 
of  the  land  and  naval  forces; 

15.  To  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress  insurrections,  and  repel  in- 
vasions ; 

16.  To  provide  for  organizing,  arming,  and  disciplining 
the  militia,  and  for  governing  such  part  of  them  as  may  be 
employed  in  the  service  of  the  United  States,  reserving  to 
the  states  respectively  the  appointment  of  the  officers,  and 
the  authority  of  training  the  militia  according  to  the  dis- 
cipline prescribed  by  Congress; 

17.  To  exercise  exclusive  legislation  in  all  cases  what- 
soever over  such  district  (not  exceeding  ten  miles  square) 
as  may,  by  session  of  particular  states,  and  the  acceptance 
of  Congress,  become  the  seat  of  the  government  of  the 
United  States,  and  to  exercise  like  authority  over  all  places 
purchased  by  the  consent  of  the  legislature  of  the  state  in 
which  the  same  shall  be,  for  the  erection  of  forts,  maga- 
zines, arsenals,  dock-yards,  and  other  needful  buildings; — 
And 

18.  To  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers, 
and  all  other  powers  vested  by  this  Constitution  in  the 
government  of  the  United  States,  or  in  any  department  or 
officer  thereof. 

Section  IX. — 1.  The  migration  or  importation  of  such 
persons  as  any  of  the  states  now  existing  shall  think  proper 
to  admit,  shall  not  be  prohibited  by  the  Congress  prior  to 
the  year  one  thousand  eight  hundred  and  eight,  but  a  tax 


APPENDIX    B 


or  duty  may  be  imposed  on  sue-li  importation,  not  exceed- 
ing ten  dollars  for  each  person. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when  in  cases  of  rebellion  or  invasion 
the  public  safety  may  require  it. 

3.  No  bill  of  attainer  or  ex-post-facto  law  shall  be 
passed. 

4.  No  capitation  or  other  direct  tax  shall  be  laid,  un- 
less in  proportion  to  the  census  or  enumeration  hereinbe- 
fore directed  to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from 
any  state. 

6.  No  preference  shall  be  given  by  any  regulation  of 
commerce  or  revenue  to  the  ports  of  one  state  over  those 
of  another;  nor  shall  vessels  bound  to,  or  from,  one  state, 
be  obliged  to  enter,  clear,  or  pay  duties  in  another. 

7.  No  money  shall  be  drawn  from  the  treasury  but  in 
consequence  of  appropriations  made  by  law ;  and  a  regular 
statement  and  account  of  the  receipts  and  expenditures  of 
all  public  money  shall  be  published  from  time  to  time. 

8.  No  title  of  nobility  shall  be  granted  by  the  United 
States :  And  no  person  holding  any  office  of  profit  or  trust 
under  them,  shall,  without  the  consent  of  the  Congress, 
accept  of  any  present,  emolument,  office,  or  title,  of  any 
kind  whatever,  from  any  king,  prince,  or  foreign  state. 

Section  X. — 1.  No  state  shall  enter  into  any  treaty,  al- 
liance, or  confederation;  grant  letters  of  marque  and  re- 
prisal ;  coin  money ;  emit  bills  of  credit ;  make  anything  but 
gold  and  silver  coin  a  tender  in  payment  of  debts;  pass 
any  bill  of  attainder,  ex-post-facto  law,  or  law  impairing 
the  obligation  of  contracts,  or  grant  any  title  of  nobility. 

2.  No  state  shall,  without  the  consent  of  the  Congress, 
lay  any  impost  or  duties  on  imports  or  exports,  except  what 
may  be  absolutely  necessary  for  executing  its  inspection 
laws;  and  the  net  product  of  all  duties  and  impost,  laid 
by  any  state  on  imports  or  exports,  shall  be  for  the  use 
of  the  treasury  of  the  United  States :  and  all  such  laws  shall 
be  subject  to  the  revision  and  control  of  the  Congress. 


326  putney's  bar  examination  kevikw 

3.  No  state  shall,  without  tht;  consent  of  Congress,  lay 
any  duty  of  tonnage,  keep  troops,  or  ships-of-war,  in  time 
of  peace,  enter  into  any  agreement  or  compact  with  an- 
other state,  or  with  a  foreign  power,  or  engage  in  war,  un- 
less actuallj^  invaded,  or  in  such  imminent  danger  as  will 
not  admit  of  delay. 

Article  II. 

Section  I. — 1.  The  executive  power  shall  be  vested  in  a 
President  of  the  United  States  of  America.  He  shall  hold 
his  office  during  the  term  of  four  years,  and,  together  with 
the  Vice-President,  chosen  for  the  same  term,  be  elected  as 
follows : 

2.  Each  state  shall  appoint,  in  such  manner  as  the  legis- 
lature thereof  may  direct,  a  number  of  electors,  equal  to 
the  whole  number  of  senators  and  representatives  to  which 
the  state  may  be  entitled  in  the  Congress ;  but  no  senator 
or  representative,  or  person  holding  an  office  of  trust  or 
profit  under  the  United  States,  shall  be  appointed  an  elec- 
tor, 

3.  The  Congress  may  determine  the  time  of  choosing 
the  electors,  and  the  day  on  which  they  shall  give  their 
votes;  which  day  shall  be  the  same  throughout  the  United 
States. 

4.  No  person  except  a  natural-born  citizen,  or  citizen 
of  the  United  States  at  the  time  of  the  adoption  of  this 
Constitution,  shall  be  eligible  to  the  office  of  President ; 
neither  shall  any  person  be  eligible  to  that  office  who  shall 
not  have  attained  to  the  age  of  thirty-five  years,  and  been 
fourteen   years   resident   within   the   United   States. 

5.  In  case  of  the  removal  of  the  President  from  office, 
or  of  his  death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  the  same  shall  devolve 
on  the  Vice-President,  and  the  Congress  may  by  law  pro- 
vide for  the  ease  of  removal,  death,  resignation,  or  inabil- 
ity, both  of  the  President  and  Vice-President,  declaring 
what  officer  shall  then  act  as  President;  and  such  officer 
shall  act  accordingly  until  the  disability  be  removed,  or  a 
President  shall  be  elected. 

().     The  President  shall,   at  stated  times,  receive  for  his 


APPENDIX    H  327 

servicers  a  compensation  which  shall  neither  be  increased 
nor  diminished  during  the  period  for  which  he  shall  have 
been  elected,  and  he  shall  not  receive  within  that  period 
any  other  emolument  from  the  United  States,  or  any  of 
them. 

7.  Before  he  enters  on  the  execution  of  his  office,  he 
shall  take  the  following  oath  or  affirmation: — "I  do  sol- 
emnly swear  (or  affirm)  that  I  will  faithfully  execute  the  of- 
fice of  President  of  the  United  States,  and  will,  to  the  best  of 
my  ability,  preserve,  protect,  and  defend  the  constitution 
of  the  United  States." 

Section  II. — 1.  The  President  shall  be  commander-in- 
chief  of  the  army  and  navy  of  the  United  States,  and  of  the 
militia  of  the  several  states,  when  called  into  the  actual 
service  of  the  United  States;  he  may  require  the  opinion, 
in  writing,  of  the  principal  officer  in  each  of  the  executive 
departments,  upon  any  subject  relating  to  the  duties  of 
their  respective  offices;  and  he  shall  have  power  to  grant 
reprieves  and  pardons  for  offenses  against  the  United 
States,  except  in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties,  provided  two- 
thirds  of  the  senators  present  concur;  and  he  shall  nom- 
inate, and  by  and  with  the  advice  and  consent  of  the  Sen- 
ate shall  appoint  ambassadors,  other  public  ministers  and 
consuls,  judges  of  the  Supreme  Court,  and  all  other  offi- 
cers of  the  United  States,  wdiose  appointments  are  not 
herein  otherwise  jji'o^'icled  for,  and  which  shall  be  estab- 
Jislied  by  law;  but  the  Congress  may  by  law  vest  the  ap- 
pointment of  such  inferior  officers,  as  they  think  proper, 
in  the  President  alone,  in  the  courts  of  law.  or  in  the  heads 
of  departments. 

3.  The  President  shall  have  power  to  fill  up  all  vacan- 
cies that  may  happen  during  the  recess  of  the  Senate,  by 
granting  commissions  which  shall  expire  at  the  end  of 
their  next  session. 

Section  HI. — lie  shall  from  time  to  time  give  to  the  Con- 
gress information  of  the  state  of  the  Union,  and  recom- 
mend  to   their   consideration   sufh    measures     as    he     shall 


328  puTxNey's  bar  examknatioiN  review 

judge  necessary  and  expedient ;  he  may,  on  extraordinary 
occasions,  convene  both  houses,  or  either  of  them,  and  in 
case  of  disagreement  between  them  with  respect  to  the 
time  of  adjournment,  he  may  adjorn  them  to  such  time  as 
he  shall  think  proper;  he  shall  receive  ambassadors  and 
other  public  ministers ;  he  shall  take  care  that  the  laws  be 
faithfully  executed,  and  shall  commission  all  the  officers 
of  the  United  States. 

Section  IV. — The  President,  Vice-President,  and  all  civil 
officers  of  the  United  States,  shall  be  removed  from  office 
on  impeachment  for,  and  conviction  of  treason,  bribery,  or 
other  high  crimes  and  misdemeanors. 

Article  III. 

Section  I. — The  judicial  power  of  the  United  States  shall 
be  vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  estab- 
lish. The  judges,  both  of  the  Supreme  and  inferior  courts, 
shall  hold  their  offices  during  good  behavior,  and  shall, 
at  stated  times,  receive  for  their  services  a  compensation 
which  shall  not  be  diminished  during  their  continuance  in 
office. 

Section  II. — 1.  The  judicial  power  shall  extend  to  all 
cases,  in  law  and  equity,  arising  under  this  Constitution, 
the  laws  of  the  United  States,  and  treaties  made,  or  which 
shall  be  made,  under  their  authority ; — to  all  eases  affecting 
ambassadors,  other  public  ministers,  and  consuls; — to  all 
cases  of  admiralty  and  maritime  jurisdiction ; — to  contro- 
versies to  which  the  United  States  shall  be  a  party ; — to  con- 
troversies between  two  or  more  states; — between  a  state 
and  citizens  of  another  state ; — between  citizens  of  differ- 
ent states; — between  citizens  of  the  same  state  claiming 
lands  under  grants  of  different  states,  and  betAveen  a  state, 
or  the  citizens  thereof,  and  foreign  states,  citizens,  or  sub- 
jects. 

2.  In  all  cases  affecting  ambassadors,  other  public  min- 
isters and  consuls,  and  those  in  whicli  a  state  shall  be 
party,  the  Supreme  Court  shall  have  original  jurisdiction. 


APPENDIX    B  329 

In  all  other  cases  before  mentioned,  the  Supreme  Court 
shall  have  appellate  jurisdiction,  both  as  to  law  and  fact, 
with  such  exceptions  and  under  such  regulations  as  the 
Congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury ;  and  such  trial  shall  be  held  in  the 
state  where  the  said  crimes  shall  have  been  committed; 
but  when  not  committed  within  any  state,  the  trial  shall 
be  at  such  place  or  places  as  the  Congress  may  by  law 
have  directed. 

Section  III.— 1.  Treason  against  the  United  States  shall 
consist  only  in  levying  war  against  them,  or  in  adhering  to 
their  enemies,  giving  them  aid  and  comfort. 

2.  No  person  shall  be  convicted  of  treason,  unless  on 
the  testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court. 

3.  The  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason,  but  no  attainder  of  treason  shall  work 
corruption  of  blood,  of  forfeiture,  except  during  the  life 
of  the  person  attainted. 

Article  IV. 

Section  I.— Full  faith  and  credit  shall  be  given  in  each 
state  to  the  public  acts,  records,  and  judicial  proceedings 
of  every  other  state.  And  the  Congress  may  by  general 
laws  prescribe  the  manner  in  which  such  acts,  records  and 
proceedings  shall  be  proved,  and  the  effect  thereof. 

Section  II. — 1.  The  citizens  of  each  state  shall  be  en- 
titled to  all  privileges  and  immunities  of  citizens  in  the 
several  states. 

2.  A  person  charged  in  any  state  with  treason,  felony, 
or  other  crime,  who  shall  flee  from  justice,  and  be  found 
in  another  state,  shall,  on  demand  of  the  executive  author- 
ity of  the  state  from  which  he  fled,  be  delivered  up,  to  be 
removed  to  the  state  having  jurisdiction  of  the  crime. 

3.  No  person  held  to  service  or  labor  in  one  state,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged  from 


330  putney's  bar  examination  review 

such  service  or  labor,  but  shall  be  delivered  up  on  claim  of 
the  party  to  whom  such  service  or  labor  may  be  due. 

Section  III. — 1,  New  states  may  be  admitted  by  the 
Congress  into  this  Union ;  but  no  new  state  shall  be  formed 
or  erected  within  the  jurisdiction  of  any  other  state ;  nor 
any  state  be  formed  by  the  junction  of  two  or  more  states, 
or  parts  of  states,  without  the  consent  of  the  legislatures 
of  the  states  concerned  as  well  as  of  the  Congress. 

2,  The  Congress  shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the  terri- 
tory or  other  property  belonging  to  the  United  States ;  and 
nothing  in  this  Constitution  shall  be  so  construed  as  to 
prejudice  any  claims  of  the  United  States,  or  of  any  par- 
ticular state. 

Section  IV. — The  United  States  shall  guarantee  to  every 
state  in  this  Union  a  republican  form  of  government,  and 
shall  protect  each  of  them  against  invasion ;  and  on  applica- 
tion of  the  legislature,  or  of  the  executive  (when  the  legis- 
lature cannot  be  convened),  against  domestic  violence. 

Article  V. 

The  Congress,  whenever  two-thirds  of  both  houses  shall 
deem  it  necessary,  shall  propose  amendments  to  this  Con- 
stitution, or,  on  the  application  of  the  legislatures  of  two- 
thirds  of  the  several  states,  shall  call  a  convention  for  pro- 
posing amendments,  which,  in  either  case,  shall  be  valid  to 
all  intents  and  purposes,  as  part  of  this  Constitution,  when 
ratified  by  the  legislatures  of  three-fourths  of  the  several 
states,  or  by  conventions  in  three-fourths  thereof,  as  the 
one  or  the  other  mode  of  ratification  may  be  proposed  by 
the  Congress ;  provided  that  no  amendment  which  may  be 
made  prior  to  the  year  one  thousand  eight  hundred  and 
eight  shall  in  any  manner  aflPeet  the  first  and  fourth  clauses 
in  the  ninth  section  of  the  first  article ;  and  that  no  state, 
without  its  consent,  shall  be  deprived  of  its  equal  suffrage 
in  the  Senate. 

Article  VI. 

1.  All  debts  contracted,  and  engagements  entered  into, 
before  the  adoption  of  this  Constitution,  shall  bo  as  valid 


APPENDIX    B  -i-jl 

against  the  United  States  under  this  Constitution,  as  under 
the  confederation. 

2.  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof;  and  all  treaties 
made,  or  which  shall  l)e  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land;  and 
the  judges  in  every  state  shall  be  bound  thereby,  anything 
in  the  Constitution  or  laws  of  any  state  to  the  contrary 
notwithstanding. 

3.  The  senators  and  representatives  before  mentioned, 
and  the  members  of  the  several  state  legislatures,  and  all 
executive  and  judicial  officers,  both  of  the  United  States 
and  of  the  several  states,  shall  be  bound  by  oath  or  af- 
firmation  to  support  this  Constitution ;  but  no  religious  test 
shall  ever  be  required  as  a  qualification  to  any  office  or 
public  trust  under  the  United  States. 

Article  VII. 

The  ratification  of  the  conventions  of  nine  states  shall  be 
sufficient  for  the  establishment  of  this  Constitution  betM'een 
the  states  so  ratifying  the  same. 


332  putney's  bak  examination' review 


AMENDMENTS  TO  THE  CONSTITUTION. 

Article  I. 

Congress  shall  make  no  law  respecting  an  establishment 
of  religion,  or  prohibiting  the  free  exercise  thereof;  or 
abridging  the  freedom  of  speech,  or  of  the  press;  or  the 
right  of  the  people  peaceably  to  assemble,  and  to  petition 
the  government  for  redress  of  grievances. 

Article  II. 
A  well-regulated  militia,  being  necessary  to  the  security 
of  a  free  state,  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed. 

Article  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house,  without  the  consent  of  the  owner,  nor  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law. 

Article  IV. 
The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated,  and  no  warrants  shall 
issue,  but  upon  probable  cause,  supported  by  oath  or  af- 
firmation, and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized. 

Article  V. 

No  person  shall  be  held  to  answer  for  a  capital  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury,  except  in  cases  arising  in  the  land 
or  naval  forces,  or  in  the  militia,  when  in  actual  service 
in  time  of  war  and  public  danger;  nor  shall  any  person  be 
subject  to  the  same  offense  to  be  twice  put  in  jeopardy  of 
life  or  limb ;  nor  shall  be  compelled  in  any  criminal  case  to 
be  a  witness  against  himself,  nor  to  be  deprived  of  life. 


APPENDIX    B  333 

liberty,  or  property,  without  due  process  of  law ;  nor  shall 
private  property  be  taken  for  public  use,  without  just  com- 
pensation. 

Article  VI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of 
the  state  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously  ascer- 
tained by  law,  and  to  be  informed  of  the  nature  and  cause 
of  the  accusation ;  to  be  confronted  with  the  witnesses 
against  him,  to  have  compulsory  process  for  obtaining  wit- 
nesses in  his  favor,  and  to  have  the  assistance  of  counsel 
for  his  defense. 

Article  VII.  . 

In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved,  and  no  fact  tried  by  a  jury  shall  be  otherwise 
re-examined  in  any  court  of  the  United  States  than  accord- 
ing to  the  rules  of  common  law. 

Article  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Article  IX. 

The  enumeration  in  the  Constitution  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others  retained 
by  the  people. 

Article  X. 

The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  states,  are  reserved 
to  the  states  respectively,  or  to  the  people. 

Article  XI. 

The  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity,  commenced 
or  prosecuted  against  one  of  the  United  States  by  citizens 
of  another  state,  or  by  citizens  or  subjects  of  any  foreign 
state. 


334  putney's  bar  examination  review 

Article  XII. 
The  electors  shall  meet  in  their  respective  states,  and  vote 
by  ballot  for  President  and  Vice-President,  one  of  whom, 
at  least,  shall  not  be  an  inhabitant  of  the  same  state  with 
themselves ;  they  shall  name  in  their  ballots  the  person 
voted  for  as  President,  and  in  distinct  ballots  the  person 
voted  for  as  Vice-President;  and  they  shall  make  distinct 
lists  of  all  persons  voted  for  as  President,  and  of  all  per- 
sons voted  for  as  Vice-President,  and  of  the  number  of 
votes  for  each,  Avhich  lists  they  shall  si^n  and  certify,  and 
transmit  sealed  to  the  seat  of  the  government  of  the  United 
States,  directed  to  the  president  of  the  Senate ; — the  presi- 
dent of  the  Senate  shall,  in  the  presence  of  the  Senate  and 
House  of  Representatives,  open  all  the  certificates,  and  the 
votes  shall  then  be  counted ; — the  person  having  the  great- 
est number  of  votes  for  President,  shall  be  the  President, 
if  such  number  be  a  majority  of  the  whole  number  of  elec- 
tors appointed;  and  if  no  person  have  such  majority,  then 
from  the  persons  having  the  highest  numbers  not  exceed- 
ing three  on  the  list  of  those  voted  for  as  President,  the 
House  of  Representatives  shall  choose  immediately,  by  bal- 
lot, the  President.  But  in  choosing  the  President,  the  votes 
shall  be  taken  by  states,  the  representation  from  each  state 
having  one  vote ;  a  quorum  for  this  purpose  shall  consist 
of  a  member  or  members  from  two-thirds  of  the  states,  and 
a  majority  of  all  the  states  shall  be  necessary  to  a  choice. 
And  if  the  House  of  Representatives  shall  not  choose  a 
President  whenever  the  right  of  choice  shall  devolve  upon 
them,  before  the  fourth  day  of  ^March  next  following,  then 
the  Vice-President  shall  act  as  President,  as  in  the  case  of 
the  death  or  other  constitutional  disability  of  the  President. 
The  person  having  the  greatest  number  of  votes  as  Vice- 
President,  shall  be  the  Vice-President,  if  such  number  be  a 
majority  of  the  whole  number  of  electors  appointed;  and 
if  no  person  have  a  majority,  then  from  the  two  highest 
numbers  on  the  list,  the  Senate  shall  choose  the  Vice-Presi- 
dent; a  quorum  for  the  purpose  shall  consist  of  two-thirds 
of  the  whole  number  of  senators,   and   a  majority  of  the 


APPENDIX    B  335 

whole  number  shall  be  necessary  to  a  choice.  But  no  per- 
son constitutionally  ineligible  to  the  office  of  President 
shall  be  c-ligible  to  that  of  Vice-President  of  the  United 
States. 

Article  XIII. 

Section  1.  Neither  slavery  nor  involuntary  servitude,  ex- 
cept as  a  punishment  for  crime,  -whereof  the  person  shall 
have  been  duly  con^^icted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction. 

Section  2.  Congress  shall  have  power  to  enforce  this  ar- 
ticle by  appropriate  legislation. 

Article  XIV. 

Section  1.  All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens 
of  the  United  States  and  of  the  state  wherein  they  reside. 
No  state  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United  States ; 
nor  shall  any  state  deprive  any  person  of  life,  liberty,  or 
property,  without  due  process  of  law,  nor  denj'^  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the 
laws. 

Section  2.  Representatives  shall  be  appointed  among  the 
several  states  according  to  their  respective  numbers,  count- 
ing the  whole  number  of  persons  in  each  state  excluding 
Indians  not  taxed.  But  when  the  right  to  vote  at  any 
election  for  the  choice  of  electors  for  President  and  Vice- 
President  of  the  United  States,  representatives  in  Congress, 
the  executive  or  judicial  officers  of  a  state,  or  the  members 
of  the  legislature  thereof,  is  denied  to  any  of  the  male  in- 
habitants of  such  state,  being  twenty-one  years  of  age  and 
citizens  of  the  United  States,  or  in  any  way  abridged,  ex- 
cept for  participation  in  rebellion  or  other  crime,  the  basis 
of  representation  therein  shall  be  reduced  in  the  propor- 
tion which  the  number  of  such  male  citizens  shall  bear  to 
the  whole  number  of  male  citizens  twenty-one  years  of  age 
in  such  state. 

Section  3.    No  person  shall  be  a  senator  or  representative 


336  putney's  bar  examination  review 

in  Congress,  or  elector  of  President  or  Vice-President,  or 
hold  any  office,  civil  or  military,  under  the  United  States, 
or  under  any  state,  having  previously  taken  an  oath  as  a 
member  of  Congress,  or  as  an  officer  of  the  United  States, 
or  as  a  member  of  any  state  legislature,  or  as  an  executive 
or  judicial  officer  of  any  state,  to  support  the  Constitution 
of  the  United  States,  shall  have  engaged  in  insurrection 
or  rebellion  against  the  same,  or  given  aid  or  comfort  to  the 
enemies  thereof.  But  Congress  may,  by  a  vote  of  two- 
thirds  of  each  house,  remove  such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the  United 
States,  authorized  by  law,  including  debts  incurred  for  pay- 
ment of  pension  and  bounties  for  services  in  suppressing 
insurrection  or  rebellion,  shall  not  be  questioned.  But 
neither  the  United  States  nor  any  state  shall  assume  or  pay 
any  debt  or  obligation  incurred  in  aid  of  insurrection  or 
rebellion  against  the  United  States,  or  any  claim  for  the 
loss  or  emancipation  of  any  slave ;  but  all  such  debts,  obli- 
gations, and  claims  shall  be  held  illegal  and  void. 

Section  5.  Congress  shall  have  power  to  enforce,  by  ap- 
propriate legislation,  the  provisions  of  this  article. 

Article  XV. 

Section  1.  The  rights  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  or  abridged  by  the  United  States, 
or  by  any  state,  on  account  of  race,  color,  or  previous  con- 
dition of  servitude. 

Section  2.  Congress  shall  have  power  to  enforce  this  ar- 
ticle by  appropriate  legislation. 


APPENDIX  C. 


CONSTITUTION  OF  ILLINOIS. 

Adopted  in  conventiorf  May  13,  1870 ;  ratified  by  the  people 

July  2,  1870 ;  in  force  August  8,  1870. 

Preamble.  We,  the  people  of  the  State  of  Illinois- 
grateful  to  Almighty  God  for  the  civil,  political  and  re- 
ligious liberty  which  He  hath  so  long  permitted  us  to  en- 
joy, and  looking  to  Him  for  a  blessing  upon  our  endeavors 
to  secure  and  transmit  the  same  unimpaired  to  succeed- 
ing generations — in  order  to  form  a  more  perfect  govern- 
ment, establish  justice,  insure  domestic  tranquillity,  pro- 
vide for  the  common  defense,  promote  the  general  wel- 
fare, and  secure  the  blessings  of  liberty  to  ourselves  and 
our  posterity,  do  ordain  and  establish  this  constitution  for 
the  State  of  Illinois. 

Article  I. 
BOUNDARIES. 

The  boundaries  and  jurisdiction  of  the  state  shall  be  as 
follows,  to-Avit:  Beginning  at  the  mouth  of  the  Wabash 
river;  thence  up  the  same,  and  with  the  line  of  Indiana, 
to  the  northwest  corner  of  said  state ;  thence  east,  w4th 
the  line  of  the  same  state,  to  the  middle  of  Lake  Michigan; 
thence  north,  along  the  middle  of  said  lake,  to  north  lati- 
tude 42  degrees  and  30  minutes;  thence  west  to  the  middle 
of  the  I\Iississippi  river,  and  thence  down  along  the  middle 
of  that  river  to  its  confluence  with  the  Ohio  river,  and 
thence  up  the  latter  river,  along  its  northwestern  shore, 
to  the  place  of  beginning:  Provided,  that  this  state  shall 
exercise  such  jurisdiction  upon  the  Ohio  river  as  she  is 
now  entitled  to,  or  such  as  may  hereafter  be  agreed  upon 
by  this  state   and  the  State  of  Kentucky. 

337 


338  putney's  bar  exaivwnation  review 

Article  II. 
BILL  OF  RIGHTS. 

1.  All  men  are  by  nature  free  and  independent,  and 
have  certain  inherent  and  inalienable  rights — among  these 
are  life,  liberty  and  the  pursuit  of  happiness.  To  secure 
these  rights  and  the  protection  of  property,  governments 
are  instituted  among  men,  deriving  their  just  powers  from 
the  consent  of  the  governed. 

2.  No  person  shall  be  deprived  of  life,  liberty  or  prop- 
erty, without  due  process  of  law. 

3.  The  free  exercise  and  enjoyment  of  religious  pro- 
fession and  worship,  without  discrimination,  shall  forever 
be  guaranteed;  and  no  person  shall  be  denied  any  civil 
or  political  right,  privilege  or  capacity,  on  account  of  his 
religious  opinions;  but  the  liberty  of  conscience  hereby 
secured  shall  not  be  construed  to  dispense  with  oaths  or 
affirmations,  excuse  acts  of  licentiousness,  or  justify  prac- 
tices inconsistent  with  the  peace  or  safety  of  the  state. 
No  person  shall  be  required  to  attend  or  support  any  min- 
istry or  place  of  worship  against  his  consent,  nor  shall  any 
preference  be  given  by  law  to  any  religious  denomination 
or  mode  of  worship. 

4.  Every  person  may  freely  speak,  write  and  publish 
on  all  subjects,  being  responsible  for  the  abuse  of  that 
liberty;  and  in  all  trials  for  libel,  both  civil  and  criminal, 
the  truth,  when  published  wnth  good  motives  and  for  justi- 
fiable ends,  shall  be  a  sufficient  defense. 

5.  The  right  of  trial  by  jury  as  heretofore  enjoyed, 
shall  remain  inviolate;  but  the  trial  of  civil  cases  before 
justices  of  the  peace  by  a  jury  of  less  than  twelve  men 
may  be   authorized  by  law. 

6.  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated;  and  no  warrant  shall 
issue  without  probable  cause,  supported  by  affidavit,  par- 
ticularly describing  the  place  to  be  searched,  and  the  per- 
sons or  things  to  be  seized. 


APPENDIX    C  339 

7.  All  persons  shall  be  bailable  by  sufficient  sureties, 
except  for  capital  offenses,  where  the  proof  is  evident  or 
the  presumption  great ;  and  the  privilege  of  -writ  of  habeas 
corpus  shall  not  be  suspended,  unless  when  in  cases  of  re- 
l)ellion  or  invasion,  the  public  safety  may  require  it. 

8.  No  person  shall  be  held  to  answer  for  a  criminal 
offense,  unless  on  indictment  of  a  grand  jury,  except  in 
cases  in  which  the  punishment  is  by  fine,  or  imprisonment 
otherwise  than  in  the  penitentiary,  in  cases  of  impeach- 
ment, and  in  cases  arising  in  the  army  and  navy,  or  in 
the  militia,  when  in  actual  service  in  time  of  war  or  public 
danger:  Provided,  that  the  grand  jury  may  be  abolished 
by  law  in  all  cases. 

9.  In  all  criminal  prosecutions  the  accused  shall  have 
the  right  to  appear  and  defend  in  person  and  by  counsel, 
to  demand  the  nature  and  cause  of  the  accusation  and  to 
have  a  copy  thereof,  to  meet  the  witnesses  face  to  face, 
and  to  have  process  to  compel  the  attendance  of  witnesses 
in  his  behalf,  and  a  speedy  public  trial  by  an  impartial 
jury  of  the  county  or  district  in  which  the  offense  is 
alleged  to  have  been  committed. 

10.  No  person  shall  be  compelled  in  any  criminal  case 
to  give  evidence  against  himself,  or  be  twice  put  in 
jeopardy  for  the  same  offense. 

11.  All  penalties  shall  be  proportioned  to  the  nature 
of  the  offense,  and  no  conviction  shall  work  corruption 
of  blood  or  forfeiture  of  estate;  nor  shall  any  person  be 
transported  out  of  the  state  for  any  offense  committed 
within  the  same. 

12.  No  person  shall  be  imprisoned  for  debt,  unless  upon 
refusal  to  deliver  up  his  estate  for  the  benefit  of  his  cred- 
itors, in  such  manner  as  shall  be  prescribed  by  law,  or  in 
cases  Avhere  there  is  strong  presumption  of  fraud. 

13.  Private  property  shall  not  be  taken  or  damaged 
for  public  use  without  just  compensation.  Such  compen- 
sation,  when  not  made  by  the  state,  shall  be  ascertained 
by  a  jury,  as  shall  be  prescribed  by  law.  The  fee  of  land 
taken  for  railroad  tracks,  without  consent  of  the  owners 


340  putney's  bar  examination  review 

thereof,   shall  remain  in  sueh   owners   subject  to   the   wse 
for  which  it  is  taken. 

14.  No  ex  post  facto  law,  or  law  impairing  the  obliga- 
tion of  contracts,  or  making  any  irrevocable  grant  of  spe- 
cial privileges  or  immunities,  shall  be  passed. 

15.  The  military  shall  be  in  strict  subordination  to  the 
civil  power. 

16.  No  soldier  shall,  in  time  of  peace,  be  quartered  in 
any  house  without  the  consent  of  the  owner;  nor  in  time 
of  war,  except  in  the  manner  prescribed  by  law. 

17.  The  people  have  the  right  to  assemble  in  a  peace- 
able manner  to  consult  for  the  common  good,  to  make 
known  their  opinions  to  their  representatives,  and  to  apply 
for  redress  of  grievances. 

18.  All  elections  shall  be   free   antl  equal. 

19.  Every  person  ought  to  find  a  certain  remedy  in  the 
laws  for  all  injuries  and  wrongs  which  he  may  receive  in 
his  person,  property  or  reputation;  he  ought  to  obtain,  by 
law,  right  and  justice  freely,  and  without  being  obliged 
to  purchase  it,  completely  and  without  denial,  promptly 
and  without  delay. 

20.  A  frequent  recurrence  to  the  fundamental  prin- 
ciples of  civil  government  is  absolutely  necessary  to  pre- 
serve the  blessings  of  liberty. 

Article  III. 
DISTRIBUTION  OF  POWERS. 
The  powers  of  the  government  of  this  state  are  divided 
into  three  distinct  departments— the  legislative,  executive 
and  judicial;  and  no  person,  or  collection  of  persons,  being 
one  of  these  departments,  sh-all  exercise  any  power  prop- 
erly belonging  to  either  of  the  others,  except  as  herein- 
after expressly   directed   or  permitted. 

Article  IV. 
LEGISLATIVE  DEPARTMENT. 
1.     The  legislative  power  shall  be   vested  in  a   general 
assembly,  which  shall  consist  of  a  senate  and  house  of  rep- 
resentatives, both  to  be  elected  by  the  people. 


APPEXUIX    r  341 

ELECTION. 

2.  An  election  for  members  of  the  general  assembly 
shall  be  held  on  the  Tuesday  next  after  the  first  Monday 
in  November,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  seventy,  and,  every  two  years  thereafter,  in 
each  county,  at  such  places  therein  as  may  be  provided  by 
law.  When  vacancies  occur  in  either  house,  the  governor, 
or  persons  exercising  the  powers  of  governor,  shall  issue 
writs  of  election  to  fill  such  vacancies. 

ELIGIBILITY  AND   OATH. 

3.  No  person  shall  be  a  senator  who  shall  not  have  at- 
tained the  age  of  twenty-five  years,  or  a  representative 
w^ho  shall  not  have  attained  the  age  of  twenty-one  years. 
No  person  shall  be  a  senator  or  representative  who  shall 
not  be  a  citizen  of  the  United  States,  and  who  shall  not 
have  been  for  five  j^ears  a  resident  of  this  state,  and  for 
two  years  next  preceding  his  election  a  resident  within 
the  territory  forming  the  district  from  which  he  is  elected. 
No  judge  or  clerk  of  any  court,  secretary  of  state,  attor- 
ney general,  state's  attorney,  recorder,  sheriff,  or  collector 
of  public  revenue,  member  of  either  house  of  congress,  or 
person  holding  any  lucrative  office  under  the  United  States 
or  this  state,  or  any  foreign  government,  shall  have  a  seat 
in  the  general  assembly:  Provided,  that  appointments  in 
the  militia,  and  the  offices  of  notary  public  and  justice 
of  the  peace,  shall  not  be  considered  lucrative.  Nor  shall 
any  person,  holding  any  office  of  honor  or  profit  under 
any  foreign  government,  or  under  the  government  of  the 
United  States  (except  postmasters  whose  annual  compen- 
sation does  not  exceed  the  sum  of  $300),  hold  any  office 
of  honor  or  profit  under  the  authority  of  this  state. 

4.  No  person  who  has  been,  or  hereafter  shall  be,  con- 
victed of  bribery,  perjury,  or  other  infamous  crime,  nor 
any  person  who  has  been  or  may  be  a  collector  or  holder 
of  public  moneys,  who  shall  not  have  accounted  for  and 
paid  over,  according  to  law,  all  such  moneys  due  from 
hira,  shall  be  eligible  to  the  general  assembly,  or  to  any 
office  of  profit  or  trust  in  this  state. 


;i42  putney's  bar  examination  review 

5.  Members  of  the  general  assembly,  before  they  euter 
upon  their  official  duties,  shall  take  and  subscribe  the  fol- 
lowing  oath  or  affirmation : 

1  do  solemnly  swear  (or  affirmj  that  1  will  support  the 
constitution  of  the  United  States,  and  the  constitution  of 
the  State  of  Illinois,  and  will  faithfully  discharge  the 
duties  of  senator  (or  representative)  according  to  the  best 
of  my  ability;  and  that  I  have  not,  knowingly  or  inten- 
tionally, paid  or  contributed  anything,  or  made  any  prom- 
ise, in  the  nature  of  a  bribe,  to  directly  or  indirectly  in- 
fluence any  vote  at  the  election  at  which  I  was  chosen  to 
fill  the  said  office,  and  have  not  accepted,  nor  will  I  accept 
or  receive,  directly  or  indirectly,  any  money  or  other  val- 
uable thing,  from  any  corporation,  company  or  person,  for 
any  vote  or  influence  I  may  give  or  withhold  on  any  bill, 
resolution  or  appropriation,  or  for  any  other  official  act. 

This  oath  shall  be  administered  by  a  judge  of  the  Su- 
preme or  Circuit  Court,  in  the  hall  of  the  house  to  which 
the  member  is  elected,  and  the  secretary  of  state  shall 
record  and  file  the  oath  subscribed  by  each  member.  Any 
member  who  shall  refuse  to  take  the  oath  herein  pre- 
scribed, shall  forfeit  his  office,  and  every  member  wdio  shall 
be  convicted  of  having  sworn  falsely  to  or  violating  his 
said  oath,  shall  forfeit  his  office,  and  be  disqualified  there- 
after from  holding  any  office  of  profit  or  trust  in  this 
state. 

APPORTIONI\IENT— SENATORIAL. 

6.  The  general  assembly  shall  apportion  the  state  every 
ten  years,  beginning  with  the  year  1871,  by  dividing  the 
population  of  the  state,  as  ascertained  by  the  federal  cen- 
sus, by  the  number  51,  and  the  quotient  shall  be  the  ratio 
of  representation  in  the  senate.  The  state  shall  be  divided 
into  51  senatorial  districts,  each  of  which  shall  elect  one 
senator,  whose  term  of  office  shall  be  four  years.  The  sen- 
ators elected  in  the  year  of  our  Lord  1872,  in  districts 
bearing  odd  numbers,  shall  vacate  their  offices  at  the  end 
of  two  years,  and  those  elected  in  districts  bearing  even 
numbers,  at  the  end  of  four  years ;  and  vacancies  occurring 


APPENDIX    C  343 

by  the  expiration  of  term,  shall  be  filled  by  the  election 
of  senators  for  the  full  term.  Senatorial  districts  shall  be 
formed  of  contiguous  and  compact  territory,  bounded  by 
county  lines,  and  contain,  as  nearly  as  practicable,  an 
equal  number  of  inhabitants;  but  no  district  shall  contain 
less  than  four-fifths  of  the  senatorial  ratio.  Counties  con 
taining  not  less  than  the  ratio  and  three-fourths,  may  be 
divided  into  separate  districts,  and  shall  be  entitled  to  two 
senators,  and  to  one  additional  senator  for  each  number 
of  inhabitants  equal  to  the  ratio  contained  by  such  coun- 
ties in  excess  of  twice  the  number  of  said  ratio. 

Note. — ^By  the  adoption  of  minority  representation,  sec- 
tions 7  and  8  of  this  article  cease  to  be  a  part  of  the  con- 
stitution. Under  section  12  of  the  schedule  and  the  vote, 
of  the  adoption,  the  following  section  relating  to  minority- 
representation  is  substituted  for  said  sections: 

MINORITY  REPRESENTATION. 
7  and  8.  The  house  of  representatives  shall  consist  of 
three  times  the  number  of  the  members  of  the  senate,  and 
the  term  of  office  shall  be  two  years.  Three  representa- 
tives shall  be  elected  in  each  senatorial  district  at  the  gen- 
eral election  in  the  year  of  our  Lord  1872,  and  every  two 
years  thereafter.  In  all  elections  of  representatives  afore- 
said, each  qualified  voter  may  cast  as  many  votes  for  one 
candidate  as  there  are  representatives  to  be  elected,  or 
may  distribute  the  same,  or  equal  parts  thereof,  among 
the  candidates,  as  he  shall  see  fit ;  and  the  candidates  high- 
est in  votes  shall  be  declared  elected. 

TI^IE  OF  ^MEETING  AND  GENERAL  RULES. 
9.  The  sessions  of  the  general  assembly  shall  commence 
at  12  o'clock  noon,  on  the  "Wednesday  next  after  the  first 
Monday  in  January,  in  the  year  next  ensuing  the  election 
of  members  thereof,  and  at  no  other  time,  unless  as  pro- 
vided by  this  constitution.  A  majority  of  the  members 
elected  to  each  house  shall  constitute  a  quorum.  Each 
house  shall  determine  the  rules  of  its  proceedings,  and  be 


344  putney's  bak  examination  kemew 

the  judge  of  the  election,  returns  and  qualifications  of  its 
members ;  shall  choose  its  own  officers ;  and  the  senate  shall 
choose  a  temporary  president  to  preside  when  the  lieuten- 
ant-governor shall  not  attend  as  president  or  shall  act  as 
governor.  The  secretary  of  state  shall  call  the  house  of 
representatives  to  order  at  the  opening  of  each  new  assem- 
bly, and  preside  over  it  until  a  temporary'  presiding  officer 
thereof  shall  have  been  chosen  and  shall  have  taken  his 
seat.  No  member  shall  be  expelled  by  either  house  except 
by  a  vote  of  two-thirds  of  all  the  members  elected  to  that 
house,  and  no  member  shall  be  twice  expelled  for  the  same 
offense.  Each  house  may  punish,  by  imprisonment,  any 
person  not  a  member,  who  shall  be  guilty  of  disrespect  to 
the  house  by  disorderly  or  contemptuous  behavior  in  its 
presence.  But  no  such  imprisonment  shall  extend  beyond 
twenty-four  hours  at  one  time,  unless  the  person  shall  per- 
sist in  such  disorderly  or  contemptuous  behavior. 

10.  The  doors  of  each  house,  and  of  committees  of  the 
whole,  shall  be  kept  open,  except  in  such  cases  as,  in  the 
opinion  of  the  house,  require  secrecy.  Neither  house  shall, 
Avitliout  the  consent  of  the  other,  adjourn,  for  more  than 
two  days,  or  to  any  other  place  than  that  in  which  the  two 
houses  shall  be  sitting.  Each  house  shall  keep  a  journal  of 
its  proceedings,  which  shall  be  published.  In  the  senate  at 
the  request  of  two  members,  and  in  the  house  at  the  re- 
quest of  five  members,  the  yeas  and  nays  shall  be  taken  on 
any  question,  and  entered  upon  the  journal.  Any  two 
members  of  either  house  shall  have  liberty  to  dissent  from 
and  protest,  in  respectful  language,  against  any  act  or  res- 
olution which  they  think  injurious  to  the  public  or  to  any 
individual,  and  have  the  reasons  of  their  dissent  entered 
upon  the  journals. 

STYLE  OF  LAWS  AND  PASSAGE  OF  BILLS. 

11.  The  style  of  the  laws  of  this  state  shall  be:  ''Be  it 
enacted  by  the  People  of  the  State  of  Illinois,  represented 
in  the   General  Assembly." 

12.  Bills    may   originate    in    either    house,    but    may    be 


APPENDIX    C  345 

altered,  amended  or  rejected  by  the  other;  and  on  the 
final  passage  of  all  bills,  the  vote  shall  be  by  yeas  and  nays, 
upon  each  bill  separately,  and  shall  be  entered  upon  the 
journal;  and  no  bill  shall  become  a  law  without  the  con- 
currence of  the  majority  of  the  members  elected  to  each 
house. 

13.  Every  bill  shall  be  read  at  large  on  three  different 
days,  in  each  house ;  and  the  bill  and  all  amendments  thereto 
shall  be  printed  before  the  vote  is  taken  on  its  final  passage ; 
and  every  bill,  having  passed  both  houses,  shall  be  signed 
by  the  speakers  thereof.  No  act  hereafter  passed  shall 
embrace  more  than  one  subject,  and  that  shall  be  ex- 
pressed in  the  title.  But  if  any  subject  shall  be  embraced 
in  an  act  which  shall  not  be  expressed  in  the  title,  such  act 
shall  be  void  only  as  to  so  much  thereof  as  shall  not  be 
so  expressed;  and  no  law  shall  be  revived  or  amended  by 
reference  to  its  title  only,  but  the  law  revived,  or  the  sec- 
tion amended,  shall  be  inserted  at  length  in  the  neAV  act. 
And  no  act  of  the  general  assembly  shall  take  effect  until 
the  first  day  of  July  next  after  its  passage,  unless,  in  case 
of  emei-gency  (.which  emergency  shall  be  expressed  in  the 
preamble  or  body  of  the  act),  the  general  assembly  shall, 
by  a  vote  of  two-thirds  of  all  the  members  elected  to  each 
house,  otherwise  direct. 

PRIVILEGES  AND  DISABILITIES. 

14.  Senators  and  representatives  shall,  in  all  cases,  ex- 
cept treason,  felony  or  breach  of  the  peace,  be  privileged 
from  arrest  during  the  session  of  the  general  assembly,  and 
in  going  to  and  returning  from  the  same;  and  for  any 
speech  or  debate  in  either  house,  they  shall  not  be  ques- 
tioned in  any  other  place. 

15.  No  person  elected  to  the  general  assembly  shall  re- 
ceive any  civil  appointment  within  this  state  from  the  gov- 
ernor, the  governor  and  senate,  or  from  the  general  assem- 
bly, during  the  term  for  which  he  shall  be  elected;  and 
all  such  appointments  and  all  votes  given  for  any  such 
members  for  anv  such  office  or  appointment,  shall  be  void; 


346  putney's  bar  examination  review 

nor  shall  any  member  of  the  general  assembly  be  inter- 
ested, either  directly  or  indirectly,  in  any  contract  with 
the  state,  or  any  county  thereof,  authorized  by  any  law 
passed  during  the  terms  for  which  he  shall  have  been 
elected,  or  within  one  year  after  the  expiration  thereof. 

PUBLIC  MONEYS  AND  APPROPRIATIONS. 

16.  The  general  assembly  shall  make  no  appropriation 
of  money  out  of  the  treasury  in  any  private  law.  Bills 
making  appropriations  for  the  pay  of  members  and  officers 
of  the  general  assembly,  and  for  the  salaries  of  the  officers 
of  the  government,  shall  contain  no  provision  on  any  other 
subject. 

17.  No  money  shall  be  drawn  from  the  treasury  except 
in  pursuance  of  an  appropriation  made  by  law,  and  on  the 
presentation  of  a  w^arrant  issued  by  the  auditor  thereon; 
and  no  money  shall  be  diverted  from  any  appropriation 
made  for  any  purpose,  or  taken  from  any  fund  whatever, 
either  by  joint  or  separate  resolution.  The  auditor  shall, 
within  60  days  after  the  adjournment  of  each  session  of  the 
general  assembly,  prepare  and  publish  a  full  statement  of 
all  money  expended  at  such  session,  specifying  the  amount 
of  each  item,  and  to  whom  and  for  what  paid. 

18.  Each  general  assembly  shall  provide  for  all  the  ap- 
propriations necessary  for  the  ordinary  and  contingent  ex- 
penses of  the  government  until  the  expiration  of  the  first 
fiscal  quarter  after  the  adjournment  of  the  next  regular  ses- 
sion, the  aggregate  amount  of  which  shall  not  be  increased 
without  a  vote  of  two-thirds  of  the  members  elected  to 
each  house,  nor  exceed  the  amount  of  revenue  authorized 
by  law  to  be  raised  in  such  time;  and  all  appropriations, 
general  or  special,  requiring  money  to  be  paid  out  of  the 
state  treasury,  from  funds  belonging  to  the  state,  shall  end 
with  such  fiscal  quarter:  Provided,  the  state  may,  to  meet 
casual  deficits  or  failures  in  revenues,  contract  debts,  never 
to  exceed  in  the  aggregate  $250,000 ;  and  moneys  thus  bor- 
rowed shall  be  applied  to  the  purpose  for  which  they  were 
obtained,  or  to  pay  the  debt  thus  created,  and  to  no  other 


APPENDIX    C  347 

purpose ;  and  no  other  debt,  except  lor  the  purpose  t)f  re- 
pelling invasion,  suppressing  insurrection,  or  defending  the 
state  in  war  (for  payment  of  which  the  faith  of  the  state 
shall  be  pledged,  shall  be  contracted,  unless  the  law  author- 
izing the  same  shall,  at  a  general  election,  have  been  sub- 
mitted to  the  people,  and  have  received  a  majority  of  the 
votes  cast  for  members  of  the  general  assembly  at  such 
election.  The  general  assembly  shall  provide  for  the  pub- 
lication of  said  law  for  three  months  at  least  before  the 
vote  of  the  people  shall  be  taken  upon  the  same ;  and  pro- 
vision shall  be  made,  at  the  time,  for  the  payment  of  the 
interest  annually,  as  it  shall  accrue,  by  a  tax  levied  for  the 
purpose  or  from  other  sources  of  revenue ;  which  law,  pro- 
viding for  the  payment  of  such  interest  by  such  tax,  shall 
be  irrepealable  until  such  debt  be  paid :  And,  provided, 
further,  that  the  law  levying  the  tax  shall  be  submitted 
to  the  people  with  the  law  authorizing  the  de})t  to  the  con- 
tracted. 

19.  The  general  assembly  shall  never  grant  or  authorize 
extra  compensation,  fee  or  allowance  to  any  public  officer, 
agent,  servant  or  contractor,  after  service  has  been  ren- 
dered or  a  contract  made,  nor  authorize  the  payment  of 
any  claim,  or  part  thereof,  hereafter  created  against  the 
state  under  any  agreement  or  contract  made  without  ex- 
press authority  of  law ;  and  all  such  unauthorized  agree- 
ments or  contracts  shall  be  null  and  void :  Provided,  the 
general  assembly  may  make  appropriations  for  expendi- 
tures incurred  in  suppressing  insurrection  or  repelling  in- 
vasion. 

20.  The  state  shall  never  pay,  assume  or  become  respon- 
sible for  the  debts  or  liabilities  of,  or  in  any  manner  give, 
loan  or  extend  its  credit  to  or  in  aid  of  any  public  or  other 
corporation,  association  or  individual. 

PAY  OF  MEIMBERS. 

21.  The  members  of  the  general  assembly  shall  receive 
for  their  services  the  sum  of  $5  per  day,  during  the  first 
session  held  under  this  constitution,  and  10  cents  for  each 


348  putney's  bar  examination  review 

mile  necessarily  traveled  in  going  to  and  returning  from 
the  seat  of  government,  to  l)o  computed  by  the  auditor 
of  public  accoimts;  and  thereafter  such  compensation  as 
shall  be  prescribed  by  law,  and  no  other  allowance  or 
emolument,  directly  or  indirectly,  for  any  purpose  what- 
ever, except  the  sum  of  $50  per  session  to  each  member, 
which  shall  be  in  full  for  postage,  stationery,  newspapers 
and  all  other  incidental  expenses  and  perquisites;  but  no 
change  shall  be  made  in  the  compensation  of  members  of 
the  general  assembly  during  the  term  for  which  they  may 
have  been  elected.  The  pay  and  mileage  allowed  to  each 
member  of  the  general  assembly  shall  be  certified  by  the 
speaker  of  their  respective  houses,  and  entered  on  the  jour- 
nals and  published  at  the  close  of  each  session. 

SPECIAL  LEGISLATION  PROHIBITED. 

22.  The  general  assembly  shall  not  pass  local  or  special 
laws  in  any  of  the  following  enumerated  cases — that  is  to 
say,  for — 

Granting  divorces ; 

Changing  the  names  of  persons  or  places ; 

Laying  out,  opening,  altering  and  working  roads  or  high- 
ways : 

Vacating  roads,  town  plats,  streets,  alleys  and  public 
grounds ; 

Locating  or  changing  county  seats ; 

Regulating  county  and  township  affairs; 

Regulating  the  practice  in  courts  of  justice; 

Regulating  the  jurisdiction  and  duties  of  justices  of  the 
peace,  police  magistrates  and  constables ; 

Providing  for  changes  of  venue  in  civil  and  criminal 
eases ; 

Incorporating  cities,  towns  or  villages,  or  changing  or 
amending  the  charter  of  any  town,  city  or  village ; 

Providing  for  the  election  of  members  of  the  board  of 
supervisors  in  townships,  incorporated  towns  or  cities; 

Summoning  and  impaneling  grand  or  petit  juries; 

Providing  for  the  management  of  common  schools; 


APPENDIX    C  349 

Regulating  the  rate  of  interest  on  money ; 

The  opening  and  conducting  of  any  election,  or  designat- 
ing the  place  of  voting ; 

The  sale  or  mortgage  of  real  estate  belonging  to  minors 
or  others  under  disability : 

The  protection  of  game  or  lish; 

Chartering  or  licensing  ferries  or  toll  bridges ; 

Remitting  fines,  penalties  or  forfeitures ; 

Creating,  increasing  or  decreasing  fees,  percentage  or  al- 
lowances of  public  officers,  during  the  term  for  which  said 
officers  are  elected  or  appointed ; 

Changing  the  law  of  descent ; 

Granting  to  any  corporation,  association  or  individual  the 
right  to  lay  down  railroad  tracks,  or  amending  existing 
charters   for   such  purpose ; 

Granting  to  any  corporation,  association  or  individual  any 
special  or  exclusive  privilege,  immunity  or  franchise  what- 
ever. 

In  all  other  cases  where  a  general  law  can  be  made  ap- 
plicable, no  special  law  shall  be  enacted. 

23.  The  general  assembly  shall  have  no  power  to  re- 
lease or  extinguish,  in  whole  or  in  part,  the  indebtedness, 
liability,  or  obligation  of  any  corporation  or  individual  to 
this  state  or  to  any  nnuiieipal  corporation  therein. 

IMPEACHMENT. 

24.  The  house  of  representatives  shall  have  the  sole 
power  of  impeachment;  but  a  majority  of  all  the  members 
elected  must  concur  therein.  All  impeachments  shall  be 
tried  by  the  senate ;  and  when  sitting  for  that  purpose,  the 
senators  shall  be  upon  oath,  or  affirmation,  to  do  justice 
according  to  law  and  evidence.  When  the  governor  of  the 
state  is  tried,  the  chief  justice  shall  preside.  No  person 
shall  be  convicted  without  the  concurrence  of  two-thirds  of 
the  senators  elected.  But  judgment,  in  such  cases,  shall 
not  extend  further  than  removal  from  office  and  disquali- 
fication to  hold  any  office  of  honor,  profit  or  trust  under  the 
government  of  this  state.     The  party,  whether  convicted  or 


350  putney's  bar  examination  review 

acquitted,  shall,  nevertheless,  be  liable  to  prosecution,  trial, 
judgment  and  punishment  according  to  law. 

MISCELLANEOUS. 

25.  The  general  assembly  shall  provide,  by  law,  that  the 
fuel,  stationery  and  printing  paper  furnished  for  the  use 
of  the  state ;  the  copying,  printing,  binding  and  distributing 
the  laws  and  journals,  and  all  other  printing  ordered  by 
the  general  assembly,  shall  be  let  by  contract  to  the  low- 
est responsible  bidder;  but  the  general  assembly  shall  fix 
a  maximum  price ;  and  no  member  thereof,  or  other  officer 
of  the  state,  shall  be  interested,  directly  or  indirectly,  in 
such  contract.  But  all  such  contracts  shall  be  subject  to 
the  approval  of  the  governor,  and  if  he  disapproves  the 
same  there  shall  be  a  re-letting  of  the  contract,  in  such 
manner  as  shall  be  prescribed  by  law. 

26.  The  state  of  Illinois  shall  never  be  made  defendant 
in  any  court  of  law  or  equity. 

27.  The  general  assembly  shall  have  no  power  to  au- 
thorize lotteries  or  gift  enterprises  for  any  purpose,  and 
shall  pass  laws  to  prohibit  the  sale  of  lottery  or  gift  enter- 
prise tickets  in  this  state. 

28.  No  law  shall  be  passed  which  shall  operate  to  extend 
the  term  of  any  public  officer  after  his  election  or  appoint- 
ment. 

29.  It  shall  be  the  duty  of  the  general  assembly  to  pass 
such  laws  as  may  be  necessary  for  the  protection  of  opera- 
tive miners,  by  providing  for  ventilation,  when  the  same 
may  be  required,  and  the  construction  of  escapement  shafts, 
or  such  other  appliances  as  may  secure  safety  in  all  coal 
mines,  and  to  provide  for  the  enforcement  of  said  laws 
by  such  penalties  and  punishments  as  may  be  deemed 
proper. 

30.  The  general  assembly  may  provide  for  establishing 
and  opening  roads  and  cartways,  connected  with  a  public 
road,  for  private  and  public  use. 

31.  The  general  assembly  may  pass  laws  permitting  the 
owners  of  lands  to  construct  drains,  ditches  and  levees  for 


APPENDIX    C  331 

agricultural,  sanitary  or  mining  purposes,  across  the  lands 
of  others,  and  provide  for  the  organization  of  drainage  dis- 
tricts and  vest  the  corporate  authorities  thereof  with  power 
to  construct  and  maintain  levees,  drains  and  ditches,  and 
to  keep  in  repair  all  drains,  ditches  and  levees  heretofore 
constructed  under  the  laws  of  this  state,  by  special  assess- 
ments upon  the  property  benefited  thereby.  (This  section 
was  submitted  to  the  voters  at  the  election  in  November, 
1878,  as  an  amendment,  was  adopted  and  became  a  part 
of  the  constitution.) 

32.  The  general  assembly  shall  pass  liberal  homestead 
and  exemption  laws. 

33.  The  general  assembly  shall  not  appropriate  out  of 
the  state  treasury,  or  expend  on  account  of  the  new  capi- 
tol  grounds,  and  construction,  completion,  and  furnishing 
of  the  state  house,  a  sum  exceeding,  in  the  aggregate, 
$3,500,000,  inclusive  of  all  appropriations  heretofore  made, 
without  first  submitting  the  proposition  for  an  additional 
expenditure  to  the  legal  voters  of  the  state,  at  a  general 
election;  nor  unless  a  majority  of  all  the  votes  cast  at  such 
election  shall  be  for  the  proposed  additional  expenditure. 

34.  The  general  assembly  shall  have  power,  subject  to 
the  conditions  and  limitations  hereinafter  contained  to  pass 
any  law  (local,  special  or  general)  providing  a  scheme  or 
charter  of  local  municipal  government  for  the  territory 
now  or  hereafter  embraced  within  the  limits  of  the  City 
of  Chicago.  The  law  or  laws  so  passed  may  provide  for 
consolidating  (in  whole  or  in  part)  in  the  municipal  gov- 
ernment of  the  city  of  Chicago,  the  poAvers  now  vested  in 
the  city,  board  of  education,  township,  park  and  other  lo- 
cal governments  within  said  territory,  or  any  part  thereof, 
and  for  the  assumption  by  the  city  of  Chicago  of  the  debts 
and  liabilities  (in  wiiole  or  in  part)  of  the  governments  or 
corporate  authorities  whose  functions  within  its  territory 
shall  be  vested  in  said  city  of  Chicago,  and  may  authorize 
said  city,  in  the  event  of  its  becoming  liable  for  the  in- 
debtedness of  two  or  more  of  the  existing  municipal  cor- 
porations lying  wholly  within  said   city  of  Chicago,  to  be- 


352  putney's  bar  examination  review 

come  indebted  to  an  amount  (including  its  existing  in- 
debtedness and  the  indebtedness  of  all  municipal  corpora- 
tions lying  wholly  within  the  limits  of  said  city,  and  said 
city's  proportionate  share  of  the  indebtedness  of  said 
county  and  sanitary  district  which  share  shall  be  de- 
termined in  such  manner  as  the  general  assembly  shall  pre- 
scribe) in  the  aggregate  not  exceeding  five  per  centum  of 
the  full  value  of  the  taxable  property  within  its  limits,  as 
ascertained  by  the  last  assessment  either  for  the  state  or 
municipal  purposes  previous  to  the  incurring  of  such  in- 
debtedness (but  no  new  bonded  indebtedness,  other  than 
for  refunding  purposes,  shall  be  incurred  until  the  propo- 
sition therefor  shall  be  consented  to  by  a  majority  of  the 
legal  voters  of  said  city  voting  on  the  question  at  any  elec- 
tion, general,  municipal  or  special)  ;  and  may  provide  for 
the  assessment  of  property  and  tlie  levy  and  collection  of 
taxes  within  said  city  for  corporate  purposes  in  accordance 
with  the  principles  of  equality  and  uniformity  prescribed 
by  this  constitution;  and  may  abolish  all  offices,  the  func- 
tions of  which  shall  be  otherwise  provided  for ;  and  may 
provide  for  the  annexation  of  territory  to  or  disconnection 
of  territory  from  said  city  of  Chicago  by  the  consent  of  a 
majority  of  the  legal  voters  (voting  on  the  question  at  any 
election,  general,  municipal  or  special)  of  the  said  city  and 
of  a  majority  of  the  voters  of  such  territory  voting  on  the 
question  at  any  election,  general,  municipal  or  special ;  and 
in  case  the  general  assembly  shall  create  municipal  courts 
in  the  city  of  Chicago  it  may  abolish  the  offices  of  justices 
of  the  peace,  police  magistrates  and  constables  in  and  for 
the  territory  within  said  city,  and  may  limit  the  jurisdic- 
tion of  justices  of  the  peace  in  the  territory  of  said  count}'' 
of  Cook  ou'^side  of  said  citj^  to  that  territory,  and  in  such 
case  the  jurisdiction  and  practice  of  said  municipal  courts 
shall  be  such  as  the  general  assembly  shall  prescribe ;  and 
the  general  assembly  may  pass  all  laws  which  it  may  deem 
requisite  to  effectually  provide  a  complete  system  of  local 
municipal  government  in  and  for  the  city  of  Chicago. 
No  law  based  upon  this  amendment  to  the  Constitution, 


APPENDIX    C  353 

affecting  the  municipal  government  of  the  city  of  Chicago, 
.shall  take  effect  until  such  law  shall  be  consented  to  by  a 
majority  of  the  legal  voters  of  said  city  voting  on  the 
question  at  any  election,  general,  municipal  or  special;  and 
no  local  or  special  law  based  upon  this  amendment  affecting 
specially  any  part  of  the  city  of  Chicago  shall  take  effect 
until  consented  to  by  a  majority  of  the  legal  voters  of  such 
part  of  said  city  voting  on  the  question  at  any  election,  gen- 
eral, municipal  or  special.  Nothing  in  this  section  con- 
tained shall  be  construed  to  repeal,  amend  or  affect  sec- 
tion four  (4)  of  Article  XI  of  the  Constitution  of  this 
state. 

Article  V. 
EXECUTIVE    DEPARTMENT. 

1.  The  executive  department  shall  consist  of  a  gov- 
ernor, lieutenant  governor,  secretary  of  state,  auditor  of 
public  accounts,  treasurer,  superintendent  of  public  in- 
struction and  attorney  general,  who  shall,  each,  with  the 
exception  of  the  treasurer,  hold  his  ofRce  for  the  term  of 
four  years  from  the  second  ^Monday  of  January  next  after 
his  election,  and  until  his  successor  is  elected  and  qualified. 
They  shall,  except  the  lieutenant  governor,  reside  at  the 
seat  of  government  during  their  term  of  office,  and  keep  the 
public  records,  books  and  papers  there,  and  shall  perform 
such  duties  as  may  be  prescribed  by  law. 

2.  The  treasurer  shall  hold  his  office  for  the  term  of  two 
years,  and  until  his  successor  is  elected  and  qualified,  and 
shall  be  ineligible  to  said  office  for  two  years  next  after  the 
end  of  the  term  for  which  he  Avas  elected.  He  may  be  re- 
quired by  the  governor  to  give  reasonable  additional  se- 
curity, and  in  default  of  so  doing  his  office  shall  be  deemed 
vacant. 

ELECTION. 

3.  An  election  for  governor,  lieutenant  governor,  secre- 
tary of  state,  auditor  of  public  accounts,  and  attorney  gen- 
eral, shall  be  held  on  the  Tuesday  next  after  the  first  Mon- 
day of  November,  in  the  year  of  our  Lord  1872,  and  every 


354  putney's  bar  examination  review 

four  years  thereafter;  for  superintendent  of  public  in- 
struction, on  the  Tuesday  next  after  the  first  Monday  of 
November,  in  the  year  1870,  and  every  four  years  there- 
after and  for  treasurer  on  the  day  last  above  mentioned, 
and  every  two  years  thereafter,  at  such  places  and  in  such 
manner  as  may  be  prescribed  by  law. 

4.  The  returns  of  every  election  for  the  above  named 
officers  shall  be  sealed  up  and  transmitted,  by  the  return- 
ing officers,  to  the  secretary  of  state,  directed  to  "The 
speaker  of  the  house  of  representatives,"  who  shall,  imme- 
diately after  the  organization  of  the  house,  and  before  pro- 
ceeding to  other  business,  open  and  publish  the  same  in  the 
presence  of  a  majority  of  each  house  of  the  general  assem- 
bly, who  shall,  for  that  purpose,  assemble  in  the  hall  of 
the  house  of  representatives.  The  person  having  the  high- 
est number  of  votes  for  either  of  said  offices  shall  be  de- 
clared duly  elected;  but  if  two  or  more  have  an  equal  and 
the  highest  number  of  votes,  the  general  assembly  shall,  by 
joint  ballot,  choose  one  of  such  persons  for  said  office.  Con- 
tested election  for  all  of  said  offices  shall  be  determined  by 
both  houses  of  the  general  assembly,  by  joint  ballot,  in 
such  manner  as  may  be  prescribed  by  law. 

ELIGIBILITY. 

5.  No  person  shall  be  eligible  to  the  office  of  governor, 
or  lieutenant  governor,  who  shall  not  have  attained  the 
age  of  thirty  years,  and  been,  for  five  years  next  preceding 
his  election,  a  citizen  of  the  United  States  and  of  this  state. 
Neither  the  governor,  lieutenant  governor,  auditor  of  pub- 
lic accounts,  secretary  of  state,  superintendent  of  public 
instruction  nor  attorney  general  shall  be  eligible  to  any 
other  office  during  the  period  for  which  he  shall  have  been 
elected. 

GOVERNOR. 

6.  The  supreme  executive  power  shall  be  vested  in  the 
governor,  who  shall  take  care  that  the  laws  be  faithfully 
executed. 

7.  The  governor  shall,  at  the  commencement  of  each  ses- 


APPENDIX    C  35o 

biou,  and  at  the  close  of  his  term  of  office,  give  to  the  gen- 
eral assembly  information,  by  message,  of  the  condition 
of  the  state,  and  shall  recommend  such  measures  as  he 
shall  deem  expedient.  He  shall  account  to  the  general  as- 
sembly, and  accompany  his  message  with  a  statement  of  all 
moneys  received  and  paid  out  by  him  from  any  funds  sub- 
ject to  his  oinier,  with  vouchers,  and,  at  the  commence- 
ment of  each  regular  session,  present  estimates  of  the 
amount  of  money  required  to  be  raised  by  taxation  for  all 
purposes. 

8.  The  governor  maj^,  on  extraordinary  occasions,  con- 
vene the  general  assembly,  by  proclamation,  stating  therein 
the  purpose  for  which  they  are  convened ;  and  the  general 
assembly  shall  enter  upon  no  business  except  that  for  which 
they  were  called  together. 

9.  In  case  of  a  disagreement  between  the  two  houses 
with  respect  to  the  time  of  adjournment,  the  governor  may, 
on  the  same  Ijeing  certified  to  him,  by  the  house  first  mov- 
ing the  adjournment,  adjourn  the  general  assembly  to 
such  time  as  he  thinks  proper,  not  beyond  the  first  day  of 
the  next  regular  session. 

10.  The  governor  shall  nominate,  and  by  and  with  the 
advice  and  consent  of  the  senate  (a  majority  of  all  the  sen- 
ators elected  concurring,  by  yeas  and  nays),  appoint  all 
officers  whose  offices  are  established  by  this  constitution,  or 
which  may  be  created  by  law,  and  whose  appointment  or 
election  is  not  otherwise  provided  for;  and  no  such  officer 
shall  be  appointed  or  elected  by  the  general  assembly. 

11.  In  any  case  of  vacancy,  during  the  recess  of  the 
senate,  in  any  office  which  is  not  elective,  the  governor  shall 
make  a  temporary  appointment  until  the  next  meeting  of 
the  senate,  when  he  shall  nominate  some  person  to  fill  such 
office ;  and  any  person  so  nominated,  who  is  confirmed  by 
the  senate  (a  majority  of  all  the  senators  elected  concur- 
ring by  yeas  and  nays),  shall  hold  his  office  during  the  re- 
mainder of  the  term,  and  until  his  successor  shall  be  ap- 
pointed and  qualified.  No  person,  after  being  rejected  by 
the  senate,  shall  be  again  nominated  for  the  same  office  at 


356  putney's  bar  examination  review 

the  same  session,  unless  at  the  request  of  the  senate,  or  be 
appointed  to  the  same  office  during  the  recess  of  the  general 
assembly. 

12.  The  governor  shall  have  power  to  remove  any  of- 
ficer whom  he  may  appoint,  in  case  of  incompetency,  neg- 
lect of  duty,  or  malfeasance  in  office ;  and  he  may  declare 
his  office  vacant,  and  fill  the  same  as  is  herein  provided  in 
other  cases  of  vacancy. 

13.  The  governor  shall  have  power  to  grant  reprieves, 
commutations  and  pardons,  after  conviction,  for  all  offenses, 
subject  to  such  regulations  as  may  be  provided  by  law  rela- 
tive to  the  manner  of  applying  therefor. 

14.  The  governor  shall  be  commander-in-chief  of  the 
military  and  naval  forces  of  the  state  (except  when  they 
shall  be  called  into  the  service  of  the  United  States),  and 
may  call  out  the  same  to  execute  the  laws,  suppress  in- 
surrection, and  repel  invasion. 

15.  The  governor,  and  all  civil  officers  of  this  state,  shall 
be   liable  to   impeachment  for   any   misdemeanor  in  office. 

VETO. 

16.  Every  bill  passed  by  the  general  assembly  shall,  be- 
fore it  becomes  a  law,  be  presented  to  the  governor.  If 
he  approves,  he  shall  sign  it,  and  thereupon  it  shall  become 
a  law;  but  if  he  does  not  approve,  he  shall  return  it,  with 
his  objections,  to  the  house  in  which  it  shall  have  orig- 
inated, which  house  shall  enter  the  objections  at  large  upon 
its  journal,  and  proceed  to  reconsider  the  bill.  If,  then, 
two-thirds  of  the  members  elected  agree  to  pass  the  same, 
it  shall  be  sent,  together  with  the  objections,  to  the  other 
house,  by  which  it  shall  likewise  be  reconsidered,  and  if 
approved  by  two-thirds  of  the  members  elected  to  that  house, 
it  shall  become  a  law,  notwithstanding  the  objections  of  the 
governor.  But  in  all  such  cases  the  vote  of  each  house 
shall  be  determined  by  yeas  and  nays,  to  be  entered  upon 
the  journal. 

Bills  maldng  appropriations  of  money  out  of  the  treas- 
ury shall   specify  the   objocts  and    piirposos  for  Avliich   the 


APPENDIX    C  357 

same  are  made,  and  appropriate  to  them  respectively  tlieir 
several  amounts  in  distinct  items  jukI  sections,  and  if  the 
governor  shall  not  api)r()ve  any  one  oi'  more  of  the  items 
or  sections  contained  in  any  bill,  but  shall  approve  the 
residue  thereof,  it  shall  become  a  law  as  to  the  residue  in 
like  manner  as  if  he  had  signed  it. 

The  governor  shall  then  return  the  bill,  Avith  his  objec- 
tions to  the  items  or  sections  of  the  same  not  approved  by 
liim,  to  the  house  in  which  the  bill  shall  have  originated, 
which  house  shall  enter  the  objections  at  large  upon  its 
journal,  and  proceed  to  reconsider  so  much  of  said  bill  as 
is  not  approved  by  the  governor. 

The  same  proceedings  shall  be  had  in  both  houses  in  re- 
considering the  same  as  is  hereinbefore  provided  in  case 
of  an  entire  bill  returned  by  the  governor  with  his  objec- 
tions; and  if  any  item  or  section  of  said  bill  not  approved 
by  the  governor  shall  be  passed  by  two-thirds  of  the  mem- 
bers elected  to  each  of  the  two  houses  of  the  general  assem- 
bly, it  shall  become  part  of  said  law,  nothwithstanding  the 
objections  of  the  governor. 

Any  bill  which  shall  not  be  returned  by  the  governor 
within  ten  days  (Sundays  excepted)  after  it  shall  have  been 
presented  to  him,  shall  become  a  law  in  like  manner  as  if 
he  had  signed  it ;  unless  the  general  assembly  shall,  by  their 
adjournment,  prevent  its  return,  in  which  case  it  shall  be 
filed  with  his  objections  in  the  office  of  the  secretary  of 
state,  within  ten  days  after  such  adjournment,  or  become  a 

law. 

LIEUTENANT  GOVERNOR. 

17.  In  case  of  the  death,  conviction  on  impeachment, 
failure  to  qualify,  resignation,  absence  from  the  state,  or 
other  disability  of  the  governor,  the  powers,  duties  and 
emoluments  of  the  office,  for  residue  of  the  term,  or  until 
the  disability  shall  be  removed,  shall  devolve  upon  the  lieu- 
tenant governor. 

18.  The  lieutenant  governor  shall  be  president  of  the 
senate,  and  shall  vote  only  when  the  senate  is  equally  di- 
vided.    The  senate  shall  choose  a  president,  pro  tempore, 


358  putney's  bar  examination  review 

to  preside  in  case  of  the  absence  or  impeachment  of  the 
lieutenant  governor,  or  when  li^  shall  hold  the  office  of 
governor. 

19.  If  there  be  no  lieutenant  governor,  or  if  the  lieu- 
tenant governor  shall,  for  any  of  the  causes  specified  in 
section  17  of  this  article,  become  incapable  of  performing 
the  duties  of  the  office,  the  president  of  the  senate  shall  act 
as  governor  until  the  vacancy  is  filled  or  the  disability  re- 
moved; and  if  the  president  of  the  senate,  for  any  of  the 
above  named  causes,  shall  become  incapable  of  performing 
the  duties  of  governor,  the  same  shall  devolve  upon  the 
speaker  of  the  house  of  representatives. 

OTHER  STATE   OFFICERS. 

20.  If  the  office  of  auditor  of  public  accounts,  treasurer, 
secretary  of  state,  attorney  general,  or  superintendent  of 
public  instruction  shall  be  vacated  by  death,  resignation  or 
otherwise,  it  shall  be  the  duty  of  the  governor  to  fill  the 
same  by  appointment,  and  the  appointee  shall  hold  his  of- 
fice until  his  successor  shall  be  elected  and  qualified  in  such 
manner  as  may  be  provided  by  law.  An  account  shall  be 
kept  by  the  officers  of  the  executive  department,  and  of 
all  the  public  institutions  of  the  state,  of  all  moneys  re- 
ceived or  disbursed  by  them,  severally,  from  all  sources, 
and  for. every  service  performed,  and  a  semi-annual  report 
thereof  be  made  to  the  governor,  under  oath;  and  any 
officer  who  makes  a  false  report  shall  be  guilty  of  perjury, 
and  punished  accordingly. 

21.  The  officers  of  the  executive  department,  and  of  all 
the  public  institutions  of  the  state,  shall,  at  least  ten  days 
preceding  each  regular  session  of  the  general  assembly, 
severally  report  to  the  governor,  who  shall  transmit  such 
reports  to  the  general  assembly,  together  with  the  reports 
of  the  judges  of  the  Supreme  Court  of  the  defects  in  the 
constitution  and  laws;  and  the  governor  may  at  any  time 
require  information  in  Avriting,  under  oath,  from  the  of- 
ficers of  the  executive  department,  and  all  officers  and  man- 
agers of  state  institutions,  upon  any  subject  relating  to  the 


APPENDIX   C  359 

condition,  management  and  expenses  of  their  respective  of- 
fices. 

THE   SEAL  OF  STATE. 

22.  There  shall  be  a  seal  of  the  state,  which  shall  be 
called  the  "Great  seal  of  the  State  of  Illinois,"  which  shall 
be  kept  by  the  secretary  of  state,  and  used  by  him,  officially, 
as  directed  by  law. 

FEES  AND  SALARIES. 

23.  The  officers  named  in  this  article  shall  receive  for 
their  services  a  salary  to  be  established  by  law,  which  shall 
not  be  increased  or  diminished  during  their  official  terms, 
and  they  shall  not,  after  the  expiration  of  the  terms  of 
those  in  office  at  the  adoption  of  this  constitution,  receive 
to  their  own  use  any  fees,  costs,  perquisites  or  office,  or 
other  compensation.  And  all  fees  that  may  hereafter  be 
payable  by  law  for  any  service  performed  by  any  officer 
provided  for  in  this  article  of  the  constitution,  shall  be  paid 
in  advance  into  the  state  treasury, 

DEFINITION  AND  OATH  OF  OFFICE. 

24.  An  office  is  a  public  position  created  by  the  consti- 
tution or  law,  continuing  during  the  pleasure  of  the  ap- 
pointing power,  or  for  a  fixed  time,  with  a  successor  elected 
or  appointed.  An  employment  is  an  agency,  for  a  tem- 
porary purpose,  which  ceases  when  that  purpose  is  accom- 
plished. 

25.  All  civil  officers,  except  members  of  the  general  as- 
sembly and  such  inferior  officers  as  may  be  by  law  ex- 
empted, shall,  before  they  enter  on  the  duties  of  their 
respective  offices,  take  and  subscribe  the  following  oath 
or  affirmation : 

I  do  solemnly  swear  (or  affirm,  as  the  case  may  be)  that 
I  will  support  the  constitution  of  the  United  States,  and  the 
constitution  of  the  State  of  Illinois,  and  that  I  will  faith- 
fully discharge  the  duties  of  the  office  of  according 

to  the  best  of  mv  abilitv. 


360  putney's  bar  examination  review 

And  no  other  oath,  declaration  or  test  shall  be  required 
as  a  qualification. 

Article  VI. 
JUDICIAL   DEPARTMENT. 

1.  The  judicial  powers,  except  as  in  this  article  is  other- 
wise provided,  shall  be  vested  in  one  supreme  court,  circuit 
courts,  county  courts,  justices  of  the  peace,  police  magis- 
trates, and  such  courts  as  may  be  created  by  law  in  and  for 
cities  and  incorporated  towns. 

SUPREME  COURT. 

2.  The  supreme  court  shall  consist  of  seven  judges,  and 
shall  have  original  jurisdiction  in  cases  relating  to  the  reve- 
nue, in  mandamus  and  habeas  corpus,  and  appellate  juris- 
diction in  all  other  cases.  One  of  said  judges  shall  be  chief 
justice ;  four  shall  constitute  a  quorum,  and  the  concurrence 
of  four  shall  be  necessary  to  every  decision. 

8.  No  person  shall  be  eligible  to  the  office  of  judge  of 
the  supreme  court  unless  he  shall  be  at  least  thirty  years  of 
age,  and  a  citizen  of  the  United  States,  nor  unless  he  shall 
have  resided  in  this  state  five  years  next  preceding  his  elec- 
tion, and  be  a  resident  of  the  district  in  which  he  shall  be 
elected. 

4.  Terms  of  the  supreme  court  shall  continue  to  be  held 
in  the  present  grand  divisions  at  the  several  places  now 
provided  for  holding  the  same ;  and  until  otherwise  pro- 
vided by  law.  one  or  more  terms  of  said  court  shall  be  held, 
for  the  northern  division,  in  the  city  of  Chicago,  each  year, 
at  such  times  as  said  court  may  appoint,  whenever  said  city 
or  the  county  of  Cook  shall  provide  appropriate  rooms 
therefor,  and  the  use  of  a  suitable  library,  without  expense 
to  the  state.  The  judicial  divisions  may  be  altered,  in- 
creased or  diminished  in  number,  and  the  times  and  places 
of  holding  said  court  may  be  changed  by  law. 

5.  The  present  grand  divisions  shall  be  preserved,  and 
be  denominated  Southern,  Central  and  Northern,  until  oth- 
erwise provided  by  law.     The  state  shall  be  divided  into 


APPENDIX    C  361 

seven  districts  for  the  election  of  judges,  and  until  other- 
wise provided  by  law,  they  shall  be  as  follows : 

First  District. — The  counties  of  St.  Clair,  Clinton,  Wash- 
ington, Jefferson,  Wayne,  Edwards,  Wabash,  White,  Ham- 
ilton, Franklin,  Perry,  Randolph,  ]\Ionroe,  Jackson,  Will- 
iamson, Saline,  Gallatin,  Hardin,  Pope,  Union,  Johnson, 
Alexander,  Pulaski  and  ]\Iassac. 

Second  District. — The  counties  of  Madison,  Bond,  Marion, 
Clay,  Richland,  Lawrence,  Crawford,  Jasper,  Effingham, 
Fayette,  JMontgomery,  IMacoupin,  Shelby,  Cumberland, 
Clark,  Green,  Jersey,  Calhoun  and  Christian. 

Third  District. — The  counties  of  Sangamon,  Macon,  Lo- 
gan, DeWitt,  Piatt,  Douglas,  Champaign,  Vermilion,  Mc- 
Lean, Livingston,  Ford,  Iroquois,  Coles,  Edgar,  ]\Ioultrie 
and  Tazewell. 

Fourth  District. — The  counties  of  Fulton,  McDonough, 
Hancock,  Schuyler,  Brown,  Adams,  Pike,  Mason,  Menard, 
Morgan,  Cass  and  Scott. 

Fifth  District. — The  counties  of  Knox,  Warren,  Hender- 
son, Mercer,  Henry,  Stark,  Peoria,  Marshall,  Putnam,  Bu- 
reau, LaSalle,  Grundy  and  Woodford. 

Sixth  District. — The  counties  of  Whiteside,  Carroll,  Jo 
Daviess,  Stephenson,  Winnebago,  Boone,  McHenry,  Kane, 
Kendall,  DeKalb,  Lee,  Ogle  and  Rock  Island. 

Seventh  District. — The  counties  of  Lake,  Cook,  Will,  Kan- 
kakee and  DuPage. 

The  boundaries  of  the  districts  may  be  changed  at  the 
session  of  the  general  assembly  next  preceding  the  elec- 
tion for  judges  therein,  and  at  no  other  time ;  but  whenever 
such  alterations  shall  be  made,  the  same  shall  be  upon  the 
rule  of  equality  of  population,  as  nearly  as  county  bounds 
will  allow,  and  the  districts  shall  be  composed  of  con- 
tiguous counties,  in  as  nearly  compact  form  as  circum- 
stances will  permit.  The  alteration  of  the  districts  shall 
not  affect  the  tenure  of  office  of  any  judge. 

6.  At  the  time  of  voting  on  the  adoption  of  this  con- 
stitution, one  judge  of  the  supreme  court  shall  be  elected 
by  the  electors  thereof,  in  each  of  said  districts  numbered 


362  putney's  bar  examination  review 

two,  three,  six  and  seven,  who  shall  hold  his  office  for  the 
term  of  nine  years,  from  the  first  Monday  of  June,  in  the 
year  of  our  Lord  1870.  The  term  of  office  of  judges  of  the 
supreme  court,  elected  after  the  adoption  of  this  constitu- 
tion, shall  be  nine  years ;  and  on  the  first  Monday  of  June 
of  the  year  in  which  the  term  of  any  of  the  judges  in  office 
at  the  adoption  of  this  constitution,  or  of  the  judges  then 
elected,  shall  expire,  and  every  nine  years  thereafter,  there 
shall  be  an  election  for  the  successor  or  successors  of  such 
judges,  in  the  respective  districts  wherein  the  term  of  such 
judges  shall  expire.  The  chief  justice  shall  continue  to  act 
as  such  until  the  expiration  of  the  term  for  which  he  was 
elected,  after  which  the  judges  shall  choose  one  of  their 
number  chief  justice. 

7.  From  and  after  the  adoption  of  this  constitution,  the 
judges  of  the  supreme  court  shall  each  receive  a  salary  of 
$4,000  per  annum,  payable  quarterly,  until  otherwise  pro- 
vided by  law.  And  after  said  salaries  shall  be  fixed  by 
law,  the  salaries  of  the  judges  in  office  shall  not  be  increased 
or  diminished  during  the  terms  for  which  said  judges  shall 
have  been  elected. 

8.  Appeals  and  writs  of  error  may  be  taken  to  the  su- 
preme court,  held  in  the  grand  division  in  which  the  case 
is  decided,  or,  by  consent  of  the  parties,  to  any  other  grand 
division. 

9.  The  supreme  court  shall  appoint  one  reporter  of  its 
decisions,  who  shall  hold  his  office  for  six  years,  subject  to 
removal  by  the  court. 

10.  At  the  time  of  the  election  for  representatives  in 
the  general  assembly,  happening  next  preceding  the  ex- 
piration of  the  terms  of  office  of  the  present  clerks  of  said 
court,  one  clerk  of  said  court  for  each  division  shall  be 
elected,  whose  term  of  office  shall  be  six  years  from  said 
election,  but  who  shall  not  enter  upon  the  duties  of  his 
office  until  the  expiration  of  the  term  of  his  predecessor, 
and  every  six  years  thereafter  one  clerk  of  said  court  for 
each  division  shall  be  elected. 


APPENDIX   C 


363 


APPELLATE  COURTS. 
11.  After  the  year  of  our  Lord  1874,  inferior  appellate 
courts,  of  uniform  organization  and  jurisdiction,  may  be 
created  in  districts  formed  for  that  purpose,  to  which  such 
appeals  and  writs  of  error  as  the  general  assembly  may 
provide  may  be  prosecuted  from  circuit  and  other  courts, 
and  from  which  appeals  and  writs  of  error  shall  lie  to  the 
supreme  court,  in  all  criminal  cases,  and  cases  in  which  a 
franchise  or  freehold  or  the  validity  of  a  statute  is  involved, 
and  in  such  other  cases  as  may  be  provided  by  law.  Such 
appellate  courts  shall  be  held  by  such  number  of  judges 
of  the  circuit  courts,  and  at  such  times  and  places,  and  in 
such  manner,  as  may  be  provided  by  law;  but  no  judges 
shall  sit  in  review  upon  cases  decided  by  him,  nor  shall 
said  judges  receive  any  additional  compensation  for  such 
services. 

CIECUIT  COURTS. 

12.  The  circuit  courts  shall  have  original  jurisdiction 
of  all  causes  in  law  and  equity,  and  such  appellate  juris- 
diction as  is  or  may  be  provided  by  law,  and  shall  hold  two 
or  more  terms  each  year  in  every  county.  The  terms  of 
office  of  judges  of  circuit  courts  shall  be  six  years. 

13.  The  state  exclusive  of  the  county  of  Cook  and  other 
counties  having  a  population  of  100,000,  shall  be  divided 
into  judicial  circuits,  prior  to  the  expiration  of  the  terms  of 
office  of  the  present  judges  of  the  circuit  courts.  Such 
circuits  shall  be  formed  of  contiguous  counties,  in  as  nearly 
compact  form  and  as  nearly  equal  as  circumstances  will 
permit,  having  due  regard  to  business,  territory  and  pop- 
ulation, and  shall  not  exceed  in  number  one  circuit  for  every 
100,000  of  population  in  the  state.  One  judge  shall  be 
elected  for  each  of  said  circuits  by  the  electors  thereof. 
New  circuits  may  be  formed  and  the  boundaries  of  circuits 
changed  by  the  general  assembly,  at  its  session  next  pre- 
ceding the  election  for  circuit  judges,  but  at  no  other  time : 
Provided,  that  the  circuits  may  be  equalized  or  changed  at 
the  first  session  of  the  general  assembly  after  the  adoption 
of  this  constitution.     The  creation,  alteration  or  change  of 


364  putney's  bar  examination  review 

any  circuit  shall  not  affect  the  tenure  of  office  of  any  judge. 
Whenever  the  business  of  the  circuit  court  of  any  one  or  of 
two  or  more  contiguous  counties,  containing  a  population 
exceeding  50,000,  shall  occupy  nine  months  of  the  year,  the 
general  assembly  may  make  of  such  county  or  counties  a 
separate  circuit.  Whenever  additional  circuits  are  created, 
the  foregoing  limitations  shall  be  observed. 

14.  The  general  assembly  shall  provide  for  the  times  of 
holding  court  in  each  county,  which  shall  not  be  changed, 
except  by  the  general  assembly  next  preceding  the  general 
election  for  judges  of  said  courts ;  but  additional  terms  may 
be  provided  for  in  any  county.  The  election  for  judges  of 
the  circuit  courts  shall  be  held  on  the  first  Monday  in 
June,  in  the  year  of  our  Lord  1873,  and  every  six  years 
thereafter. 

15.  The  general  assembly  may  divide  the  state  into  ju- 
dicial circuits  of  greater  population  and  territory,  in  lieu 
of  the  circuits  provided  for  in  section  13  of  this  article,  and 
provide  for  the  election  therein,  severally,  by  the  electors 
thereof,  by  general  ticket,  of  not  exceeding  four  judges, 
who  shall  hold  the  circuit  courts  in  the  circuit  for  which 
they  shall  be  elected,  in  such  manner  as  may  be  provided 
by  law. 

16.  From  and  after  the  adoption  of  this  constitution, 
judges  of  the  circuit  courts  shall  receive  a  salary  of  $3,000 
per  annum,  payable  quarterly,  until  otherwise  provided  by 
law.  And  after  their  salaries  shall  be  fixed  by  law,  they 
shall  not  be  increased  or  diminished  during  the  terms  for 
which  said  judges  shall  be,  respectively,  elected;  and  from 
and  after  the  adoption  of  this  constitution,  no  judge  of  the 
supreme  or  circuit  court  shall  receive  any  other  compensa- 
tion, perquisite  or  benefit,  in  any  form  whatsoever,  nor 
perform  any  other  than  judicial  duties  to  which  may  be- 
long any  emoluments. 

17.  No  person  shall  be  eligible  to  the  office  of  judge  of 
the  circuit  or  any  inferior  court,  or  to  membership  in  the 
''board  of  county  commissioners,"  unless  he  shall  be  at 
least  25  years  of  age,  and  a  citizen  of  the  United  States, 
nor  unless  he  shall  have  resided  in  this  state  five  years  next 


APPENDIX   C  365 

preceding  his  election,  and  be  a  resident  of  the  circuit, 
count}',  city,  cities  or  incorporated  tovvn  in  which  he  shall 
be  elected. 

COUNTY  COURTS. 

18.  There  shall  be  elected  in  and  for  each  county,  one 
county  judge  and  one  clerk  of  the  county  court,  whose 
terms  of  office  shall  be  four  years.  But  the  general  assem- 
bly may  create  districts  of  two  or  more  contiguous  coun- 
ties, in  each  of  which  shall  be  elected  one  judge,  who  shall 
take  the  place  of  and  exercise  the  powers  and  jurisdiction 
of  county  judges  in  such  districts.  County  courts  shall  be 
courts  of  record,  and  shall  have  original  jurisdiction  in  all 
matters  of  probate,  settlement  of  estates  of  deceased  per- 
sons, appointment  of  guardians  and  conservators,  and  set- 
tlements of  their  accounts,  in  all  matters  relating  to  ap- 
prentices, and  in  proceedings  for  the  collection  of  taxes 
and  assessments,  and  such  other  jurisdiction  as  may  be 
provided  for  by   general  law. 

19.  Appeals  and  writs  or  error  shall  be  allowed  from 
final  determinations  of  county  courts,  as  may  be  provided 
by  law. 

PROBATE  COURTS. 

20.  The  general  assembly  may  provide  for  the  estab- 
lishment of  a  probate  court  in  each  county  having  a  popu- 
lation of  over  50,000,  and  for  the  election  of  a  judge  there- 
of, whose  term  of  office  shall  be  the  same  as  that  of  the 
county  judge,  and  who  shall  be  elected  at  the  same  time 
and  in  the  same  manner.  Said  courts,  when  established, 
shall  have  original  jurisdiction  of  all  probate  matters,  the 
settlement  of  estates  of  deceased  persons,  the  appointment 
of  guardians  and  conservators,  and  settlement  of  their  ac- 
counts: in  all  matters  relating  to  apprentices,  and  in  cases 
of  the  sales  of  real  estate  of  deceased  persons  for  the  pay- 
ment of  debts. 

JUSTICES  OF  THE  PEACE  AND  CONSTABLES. 
21.     Justices  of  the  peace,  police  magistrates,  and  consta- 
bles shall  be   elected   in   and   for   such   distric+s   as   are,  or 


366  putney's  bar  examination  review 

luay  be,  provided  by  law,  and  the  jurisdiction  of  sucli  jus- 
tices of  the  peace  and  police  magistrates  shall  be  uniform. 

STATE'S  ATTORNEYS. 

22.  At  the  election  for  members  of  the  general  assembly 
in  the  year  of  our  Lord  1872,  and  every  four  years  there- 
after, there  shall  be  elected  a  state's  attorney  in  and  for 
each  county,  in  lieu  of  the  state's  attorneys  now  provided 
by  law,  whose  term  of  office  shall  be  four  years. 

COURTS   OF  COOK  COUNTY. 

23.  The  county  of  Cook  shall  be  one  judicial  circuit. 
The  circuit  of  Cook  county  shall  consist  of  five  judges, 
until  their  number  shall  be  increased,  as  herein  provided. 
The  present  judge  of  the  recorder's  court  of  the  city  of 
Chicago,  and  the  present  judge  of  the  circuit  court  of  Cook 
coun*ty,  shall  be  two  of  said  judges,  and  shall  remain  in 
office  for  the  terms  for  which  they  were  respectively 
elected  and  until  their  successors  shall  be  elected  and  qual- 
ified. The  superior  court  of  Chicago  shall  be  continued, 
and  called  the  superior  court  of  Cook  county.  The  general 
assembly  may  increase  the  number  of  said  judges,  by  add- 
ing one  to  either  of  said  courts  for  every  additional  50,000 
inhabitants  in  said  county,  over  and  above  a  population  of 
400,000.  The  terms  of  office  of  the  judges  of  said  courts 
hereafter  elected,  shall  be  six  years. 

24.  The  judge  having  the  shortest  unexpired  term  shall 
be  chief  justice  of  the  court  of  which  he  is  a  judge.  In 
case  there  are  two  or  more  whose  terms  expire  at  the  same 
time,  it  may  be  determined  by  lot  which  shall  be  chief 
justice.  Any  judge  of  either  of  said  courts  shall  have  all 
the  powers  of  a  circuit  judge,  and  may  hold  the  court  of 
which  he  is  a  member.  Each  of  them  may  hold  a  different 
branch  thereof  at  the  same.  time. 

25.  The  judges  of  the  superior  and  circuit  courts,  and 
the  state's  attorney,  in  said  county,  shall  receive  the  same 
salaries,  payable  out  of  the  state  treasury,  as  is  or  may  be 
paid  from  said  treasury  to  the  circuit  judges  and  state's 


APPENDIX   C  367 

attorneys  of  the  state,  and  such  further  compensation,  to 
be  paid  by  the  county  of  Cook,  as  is  or  may  be  provided  by 
law;  such  compensation  shall  not  be  changed  during  their 
continuance  in  office. 

26.  The  recorder's  court  of  the  city  of  Chicago  shall  be 
continued,  and  shall  be  called  the  "criminal  court  of  Cook 
county."  It  shall  have  the  jurisdiction  of  a  circuit  court, 
in  all  cases  of  criminal  and  quasi  criminal  nature,  arising 
in  the  county  of  Cook,  or  that  may  be  brought  before  said 
court  pursuant  to  law;  and  all  recognizances  and  appeals 
taken  in  said  county,  in  criminal  and  quasi  criminal  cases, 
shall  be  returnable  and  taken  to  said  court.  It  shall  have 
no  jurisdiction  in  civil  cases,  except  in  those  on  behalf  of 
the  people,  and  incident  to  such  criminal  or  qtiasi  criminal 
matters,  and  to  dispose  of  unfinished  business.  The  terms 
of  said  criminal  court  of  Cook  county  shall  be  held  by  one 
or  more  of  the  judges  of  the  circuit  or  superior  court  of 
Cook  county,  as  nearly  as  may  be  in  alternation,  as  may 
be  determined  by  said  judges,  or  provided  by  law.  Said 
judges  shall  be  ex  officio  judges  of  said  court. 

27.  The  present  clerk  of  the  recorder's  court  of  the  city 
of  Chicago  shall  be  the  clerk  of  the  criminal  court  of  Cook 
county,  during  the  term  for  which  he  was  elected.  The 
present  clerks  of  the  superior  court  of  Chicago,  and  the 
present  clerk  of  the  circuit  court  of  Cook  county,  shall 
continue  in  office  during  the  terms  for  which  they  were 
respectively  elected;  and  thereafter  there  shall  be  but  one 
clerk  of  the  superior  court,  to  be  elected  by  the  qualified 
electors  of  said  county,  who  shall  hold  his  office  for  the 
term  of  four  years,  and  until  his  successor  is  elected  and 
qualified. 

28.  All  justices  of  the  peace  in  the  city  of  Chicago  shall 
be  appointed  by  the  governor,  by  and  with  the  advice  and 
consent  of  the  senate  (but  only  upon  the  recommendation 
of  a  majority  of  the  judges  of  the  circuit,  superior  and 
county  courts),  and  for  such  districts  as  are  now  or  shall 
hereafter  be  provided  by  law.  They  shall  hold  their  offices 
for  four  years,  and  until  their  successors  have  been  com- 


368  putney's  bar  examination  review 

missioned  and  (lualified,  but  they  may  be  removed  by  sum- 
mary proceeding  in  the  circuit  or  superior  court,  for  extor- 
tion or  other  malfeasance.  Existing  justices  of  the  peace 
and  police  magistrates  may  hold  their  offices  until  the  ex- 
piration  of  their  respective  terms. 

GENERAL  PROVISIONS. 

29.  All  judicial  officers  shall  be  commissioned  by  the 
governor.  All  laws  relating  to  courts  shall  be  general, 
and  of  uniform  operation ;  and  the  organization,  jurisdic- 
tion, powers,  proceedings  and  practice  of  all  courts,  of  the 
same  class  or  grade,  so  far  as  regulated  by  law,  and  the 
force  and  effect  of  the  process,  judgments  and  decrees  of 
such  courts,  severally,  shall  be  uniform. 

30.  The  general  assembly  may,  for  cause  entered  on  the 
journals,  upon  due  notice  and  opportunity  of  defense,  re- 
move from  office  any  judge,  upon  concurrence  of  three- 
fourths  of  all  the  members  elected,  of  each  house.  All  other 
officers  in  this  article  mentioned  shall  be  removed  from  of- 
fice on  prosecution  and  final  conviction  for  misdemeanor 
in  office. 

31.  All  judges  of  courts  of  record,  inferior  to  the  su- 
preme court,  shall,  on  or  before  the  first  day  of  June,  of 
each  year,  report  in  writing  to  the  judges  of  the  supreme 
court  such  defects  and  omissions  in  the  laws  as  their  ex- 
perience may  suggest ;  and  the  judges  of  the  supreme  court 
shall,  on  or  before  the  first  day  of  January  of  each  year, 
report  in  wa-iting  to  the  governor  such  defects  and  omis- 
sions in  the  constitution  and  laws  as  they  may  find  to  exist, 
together  with  appropriate  forms  of  bills  to  cure  such  de- 
fects and  omissions  in  the  laws.  And  the  judges  of  the 
several  circuit  courts  shall  report  to  the  next  geenral  as- 
sembly the  number  of  days  they  have  held  court  in  the 
several  counties  composing  their  respective  circuits,  the 
preceding  two  years. 

32.  All  officers  provided  for  in  this  article  shall  hold 
their  offices  until  their  successors  shall  be  qualified,  and 
they    shall,    respectively,    reside    in    the     division,    circuit, 


APPENDIX   C  369 

coimty  or  district  for  which  they  may  be  elected  or  ap- 
pointed. The  terms  of  office  of  all  such  officers,  where  not 
otherwise  prescribed  in  this  article,  shall  be  four  years. 
All  officers,  where  not  otherwise  provided  for  in  this  arti- 
cle, shall  perform  such  duties  and  receive  such  compensa- 
tion as  is  or  may  be  provided  by  law.  Vacancies  in  such 
elective  offices  shall  be  filled  by  election;  but  where  the 
unexpired  term  does  not  exceed  one  year,  the  vacancy  shall 
be  filled  by  appointment,  as  follows :  Of  judges,  by  the 
governor;  of  clerks  of  courts,  by  the  court  to  which  the 
office  appertains,  or  by  the  judge  or  judges  thereof;  and 
of  all  such  other  offices,  by  the  board  of  supervisors  or 
board  of  county  commissioners  in  the  county  where  the  va- 
cancy occurs. 

33.  All  process  shall  run:  In  the  name  of  the  People 
of  the  State  of  Illinois;  and  all  prosecutions  shall  be  car- 
ried on :  In  the  name  and  by  the  authority  of  the  People 
of  the  State  of  Illinois ;  and  conclude :  Against  the  peace 
and  dignity  of  the  same.  "Population,"  wherever  used  in 
this  article,  shall  be  determined  by  the  next  preceding  cen- 
sus of  this  state,  or  of  the  United  States. 


Article  VII. 
SUFFRAGE. 

1.  Every  person  having  resided  in  this  state  one  year, 
in  the  county  90  days,  and  in  the  election  district  30  days 
next  preceding  any  election  therein,  who  was  an  elector  in 
this  state  on  the  first  day  of  April,  in  the  year  of  our  Lord 
1848,  or  obtained  a  certificate  of  naturalization  before  any 
court  of  record  in  this  state  prior  to  the  first  day  of  Jan- 
uary, in  the  year  of  our  Lord  1870,  or  who  shall  be  a  male 
citizen  of  the  United  States,  above  the  age  of  21  years,  shall 
be  entitled  to  vote  at  such  election. 

2.  All  votes  shall  be  by  ballot. 

3.  Electors  shall,  in  all  cases  except  treason,  felony,  or 
breach  of  the  peace,  be  privileged  from  arrest  during  their 
attendance  at  elections,  and  in  going  to  and  returning  from 


370  putney's  bar  examination  review 

the  same.  And  no  elector  shall  be  obliged  to  do  military 
duty  on  tiie  days  of  election,  except  in  time  oi'  war  or 
public  danger. 

4.  No  elector  shall  be  deemed  to  have  lost  his  residence 
in  this  state  by  reason  of  his  absence  on  business  of  the 
United  States,  or  of  this  state,  or  in  the  military  or  naval 
service  of  the  United  States. 

5.  No  soldier,  seaman  or  marine  in  the  army  or  navy 
of  the  United  States  shall  be  deemed  a  resident  of  this 
state  in  consequence  of  being  stationed  therein. 

6.  No  person  shall  be  elected  or  appointed  to  any  office 
in  this  state,  civil  or  military,  who  is  not  a  citizen  of  the 
United  States,  and  who  shall  not  have  resided  in  this  state 
one  year  next  preceding  the  election  or  appointment. 

7.  The  general  assembly  shall  pass  laws  excluding  from 
the  right  of  suffrage  persons  convicted  of  infamous  crimes. 

Article   VIII. 
EDUCATION. 

1.  The  general  assembly  shall  provide  a  thorough  and 
efficient  system  of  free  schools,  whereby  all  children  of  this 
state  may  receive  a  good  common  school  education. 

2.  All  lands,  moneys,  or  other  property,  donated,  grant- 
ed or  received  for  schools,  college,  seminary  or  university 
purposes,  and  the  proceeds  thereof,  shall  be  faithfully  ap- 
plied to  the  objects  for  which  such  gifts  or  grants  were 
made. 

3.  Neither  the  general  assembly  nor  any  county,  city, 
town,  township,  school  district,  or  other  public  corpora- 
tion, shall  ever  make  any  appropriation  or  pay  from  any 
public  fund  whatever,  anything  in  aid  of  any  church  or 
sectarian  purpose,  or  to  help  support  or  sustain  any  school, 
academy,  seminary,  college,  university,  or  other  literary 
or  scientific  institution,  controlled  by  any  church  or  sec- 
tarian denomination  whatever;  nor  shall  any  grant  or 
donation  of  land,  money,  or  other  personal  property,  ever 
be  made  by  the  state  or  any  such  public  corporation,  to 
any  church,  or  for  any  sectarian  purpose. 


APPENDIX    C  371 

4.  No  teacher,  state,  county,  township  or  district  school 
officer  shall  be  interested  in  the  sale,  proceeds  or  profits 
of  any  book,  apparatus  or  furniture  used  or  to  be  used 
in  any  school  in  this  state,  with  which  such  officer  or 
teacher  may  be  connected,  under  such  penalties  as  may  be 
provided  by  the  general  assembly. 

5,  There  may  be  a  county  superintendent  of  schools  in 
each  county,  whose  qualifications,  powers,  duties,  compen- 
sation, and  time  and  manner  of  election,  and  term  of  of- 
fice, shall  be  prescribed  by  Ieav. 

Article  IX. 
REVENUE. 

1.  The  general  assembly  shall  provide  such  revenue  as 
may  be  needful  by  levying  a  tax,  by  valuation,  so  that 
every  person  and  corporation  shall  pay  a  tax  in  propor- 
tion to  the  value  of  his,  her  or  its  property — such  value 
to  be  ascertained  by  some  person  or  persons,  to  be  elected 
or  appointed  in  such  manner  as  the  general  assembly  shall 
direct,  and  not  otherwise;  but  the  general  assembly  shall 
have  power  to  tax  peddlers,  auctioneers,  brokers,  hawkers, 
merchants,  commission  merchants,  showmen,  jugglers,  inn- 
keepers, grocery  keepers,  liquor  dealers,  toll  bridges,  fer- 
ries, insurance,  telegraph  and  express  interests  or  business, 
vendors  of  patents,  and  persons  or  corporations  owning 
or  using  franchises  and  privileges,  in  such  manner  as  it 
shall  from  time  to  time  direct  by  general  law,  uniform  as 
to  the  class  upon  which  it  operates. 

2.  The  specification  of  the  objects  and  subjects  of  taxa- 
tion shall  not  deprive  the  general  assembly  of  the  power 
to  require  other  subjects  or  objects  to  be  taxed  in  such 
manner  as  may  be  consistent  with  the  principles  of  taxa- 
tion fixed  in  this  constitution. 

3.  The  property  of  the  state,  counties,  and  other  mu- 
nicipal corporations,  both  real  and  personal,  and  such 
other  proi)erty  as  may  be  used  exclusively  for  agricultural 
and  horticultural  societies,  for  school,  religious,  cemetery 
and  charitable  purposes,  may  be  exempted  from  taxation; 


372  putney's  bah  examination  review 

but  .suuii  exempliuu  .shall  \>v  only  by  general  law.  In  the 
assessment  of  real  estate  ineuniberetl  i)y  jmijlie  easement, 
any  depreeiatiou  oeeasioneil  by  siieh  f.'asement  may  be  de- 
ductetl   in  the   \alualiuii   of  sueh   proptily. 

4.  The  general  assembly  shall  prtiviilc,  in  ail  cases 
where  it  may  be  necjessary  to  sell  real  estate  for  the  non- 
payment of  taxes  or  special  assessments  l"i)r  slate,  county, 
municipal  or  otlier  purposes,  tiiat  a  return  of  such  unpaid 
taxes  or  assessments  shall  be  nuide  to  some  general  ollicer 
of  the  county  having  authority  to  receive  state  and  county 
taxes;  and  there  shall  be;  no  sale  of  said  properly  for  any 
of  said  taxes  or  assessments  but  by  said  olficer,  ui)on  the 
order  or  judgment  of  some  court  of  record. 

5.  The  right  of  redemption  from  all  sales  of  real  estate 
for  the  non-payment  of  taxes  or  special  assessments  of 
any  character  whatever,  shall  exist  in  favor  of  owners  and 
persons  interested  in  such  real  estate,  for  a  i)rriod  of  not 
less  than  two  years  from  such  sales  thereof.  And  the  gen- 
eral assembly  shall  provide  by  law  for  reasonable  notice 
to  be  gi\en  to  the  owneis  oi-  parties  interested,  by  publica- 
tion or  otherwise,  of  the  fact  of  the  sale  of  the  property 
for  such  taxes  or  assessments,  and  when  the  time  of  re- 
demption shall  expire:  Provided,  that  occui)ants  shall  in 
all  cases  be  served  with  personal  notice  before^  the  time 
of  redemption   expires. 

6.  The  general  assembly  shall  have  no  power  to  re- 
lease or  discharge  any  county,  city,  township,  town  or 
district  whatever,  or  the  inhabitants  thereof,  or  the  prop- 
erty therein,  from  their  or  its  proportionate  share  of  taxes 
to  be  levied  for  state  purposes,  nor  shall  commutation  for 
such  taxes  be  authorized  in  any  form  whatsoever. 

7.  All  taxes  levied  for  state  purposes  shall  be  paid  into 
the  state  treasury. 

8.  County  authorities  shall  never  assess  taxes,  the  ag- 
gregate of  which  shall  exceed  75  cents  per  $100  valuation, 
except  for  the  payment  of  indebtedness  existing  at  the 
adoption  of  this  constitution,  unless  authorized  by  a  vote 
of  the  people  of  the  county. 


APPENDIX    C  373 

9.  The  general  assembly  may  vest  the  corporate  au- 
thorities of  cities,  towns  and  villages  with  power  to  make 
local  improvements  by  special  assessment,  or  by  special 
taxation  of  contiguous  property,  or  otherwise.  For  all 
other  corporate  purposes,  all  municipal  corporations  may 
be  vested  with  authority  to  assess  and  collect  taxes ;  but 
such  taxes  shall  be  uniform  in  respect  to  persons  and  prop- 
erty, within  the  jurisdiction  of  the  body  imposing  the 
same. 

10.  The  general  assembly  shall  not  impose  taxes  upon 
municipal  corporations,  or  the  inhabitants  or  property 
thereof,  for  corporate  purposes,  but  shall  require  that  all 
the  taxable  property  within  the  limits  of  municipal  cor- 
porations shall  be  taxed  for  the  payment  of  debts  con- 
tracted under  authority  of  law,  such  taxes  to  be  imiform 
in  respect  to  persons  and  property,  wnthin  the  jurisdiction 
of  the  body  imposing  the  same.  Private  property  shall 
not  be  liable  to  be  taken  or  sold  for  the  payment  of  the 
corporate  debts  of  a  municipal  corporation. 

11.  No  person  who  is  in  default,  as  collector  or  cus- 
todian of  money  or  property  belonging  to  a  municipal  cor- 
poration, shall  be  eligible  to  any  office  in  or  under  such 
corporation.  The  fees,  salary  or  compensation  of  no  mu- 
nicipal officer  who  is  elected  or  appointed  for  a  definite 
term  of  of^ce,  shall  be  increased  or  diminished  during 
such  term. 

12.  No  county,  city,  township,  school  district,  or  other 
municipal  corporation,  shall  be  allowed  to  become  indebted 
in  any  manner  or  for  any  purpose,  to  an  amount,  includ- 
ing existing  indebtedness,  in  the  aggregate  exceeding  five 
per  centum  on  the  value  of  the  taxable  property  therein, 
to  be  ascertained  by  the  last  assessment  for  state  and 
county  taxes,  previous  to  the  incurring  of  such  indebted- 
ness. Any  county,  city,  school  district,  or  other  municipal 
corporation,  incurring  any  indebtedness  as  aforesaid,  shall 
before,  or  at  the  time  of  doing  so,  provide  for  the  collec- 
tion of  a  direct  annual  tax  sufficient  to  pay  the  interest 
on  such  debt  as  it  falls  due,  and  also  to  pay  and  discharge 


374  putney's  bar  examination-  ukview 

the  principal  thereof  within  twenty  years  from  the  time 
of  contracting  the  same.  This  section  shall  not  be  con- 
strued to  prevent  any  county,  city,  township,  school  dis- 
trict, or  other  municipal  corporation,  from  issuing  their 
bonds  in  compliance  with  any  vote  of  the  people  which 
may  have  been  had  prior  to  the  adoption  of  this  constitu- 
tion in  pursuance  of  any  law  providing  therefor. 

13.  The  corporate  authorities  of  the  City  of  Chicago 
are  hereby  authorized  to  issue  interest-bearing  bonds  of 
said  city  to  an  amount  not  exceeding  five  million  dollars, 
at  a  rate  of  interest  not  to  exceed  five  per  centum  per  an- 
num, the  principal  payable  within  thirty  years  from  the 
date  of  their  issue,  and  the  proceeds  thereof  shall  be  paid 
to  the  treasurer  of  the  World's  Columbian  p]xposition,  and 
used  and  disbursed  by  him  under  the  direction  and  con- 
trol of  the  directors,  and  aid  of  the  World's  Columbian 
Exposition,  to  be  held  in  the  City  of  Chicago,  in  pursuance 
of  an  act  of  congress  of  the  United  States.  Provided: 
That  if  at  the  election  for  the  adoption  of  this  amendment 
to  the  constitution  a  majority  of  the  votes  cast  within  the 
limits  of  the  City  of  Chicago  shall  be  against  its  adoption, 
then  no  bonds  shall  be  issued  under  this  amendment.  And 
said  corporate  authorities  shall  be  repaid  as  large  a  pro- 
portionate amount  of  the  aid  given  by  them  as  is  repaid 
to  the  stockliolders  on  the  sums  subscribed  and  paid  by 
them,  and  the  money  so  received  shall  be  used  in  the  re- 
demption of  the  bonds  issued  as  aforesaid,  provided  that 
said  authorities  may  take  in  whole  or  in  part  of  the  sum 
coming  to  them  any  permanent  improvements  placed  on 
land  held  or  controlled  by  them.  And  provided  further 
that  no  such  indebtedness  so  created  shall  in  any  part 
thereof  be  paid  by  the  state,  or  from  any  state  revenue, 
tax  or  fund,  but  the  same  shall  be  paid  by  the  said  City 
of  Chicago   alone. 

Article  X. 
COUNTIES. 
1.     No  new  county  shall  be  formed  or  established  l)y  the 
general   assembly,   which   will    reduce   the   county   or  coun- 


APPENDIX    C  375 

ties,  or  either  of  them,  from  which  it  shall  be  taken,  to 
less  contents  than  400  square  miles;  nor  shall  any  county 
be  formed  of  less  contents;  nor  shall  any  line  thereof  pass 
within  less  than  ten  miles  of  any  county  seat  of  the  county 
or  counties  proposed  to  be  divided. 

2.  No  county  shall  be  divided,  or  have  any  part  stricken 
therefrom,  without  submitting  the  question  to  a  vote  of 
the  people  of  the  county,  nor  unless  a  majority  of  all  the 
legal  voters  of  the  county,  voting  on  the  question,  shall 
vote  for  the   same. 

3.  There  shall  be  no  territory  stricken  from  any  coun- 
ty, unless  a  majority  of  the  voters  living  in  such  territory 
shall  petition  for  such  division ;  and  no  territory  shall  be 
added  to  any  county  without  the  consent  of  the  majority 
of  the  voters  of  the  county  to  which  it  is  proposed  to  be 
added.  But  the  portion  so  stricken  off  and  added  to  an- 
other county,  or  formed  in  whole  or  in  part  into  a  ncAv 
county,  shall  be  holden  for,  and  obliged  to  pay  its  pro- 
portion of  the  indebtedness  of  the  county  from  which  it 
has  been  taken. 

COUNTY  SEATS. 

4.  No  county  seat  shall  be  removed  until  the  point  to 
which  it  is  proposed  to  be  removed  shall  be  fixed  in  pur- 
suance of  law,  and  three-fifths  of  the  voters  of  the  county, 
to  be  ascertained  in  such  manner  as  shall  be  provided  by 
general  law,  shall  have  voted  in  favor  of  its  removal  to 
such  point;  and  no  person  shall  vote  on  such  question  who 
has  not  resided  in  the  county  six  months,  and  in  the  elec- 
tion precinct  ninety  days  next  preceding  such  election. 
The  question  of  the  removal  of  a  county  seat  shall  not  be 
oftener  submitted  than  once  in  ten  years  to  a  vote  of  the 
people.  But  when  an  attempt  is  made  to  remove  a  county 
seat  to  a  point  nearer  to  the  center  of  a  county,  then  a 
majority  vote  only  shall  be  necessary. 

COUNTY  GOVERNMENT. 

5.  The  general  assembly  shall  provide,  by  general  law, 
for  township  organization,  under  which  any  county  may 
organize  whenever  a  majority  of  the  legal  voters  of  such 


376  putney'^  bar  examination  ueview 

county,  voting  at  any  general  election,  sliall  so  determine, 
and  whenever  any  county  shall  adopt  township  organiza- 
tion, so  much  of  this  constitution  as  provides  for  the  man- 
agement of  the  fiscal  concerns  of  the  said  county  by  the 
board  of  county  commissioners,  may  be  dispensed  with, 
and  the  affairs  of  said  county  may  be  transacted  in  such 
manner  as  the  general  assembly  may  provide.  And  in  any 
county  that  shall  have  adopted  a  township  or<;ranizHtion, 
the  question  of  continuing  the  same  may  be  sul)mitted  to 
a  vote  of  the  electors  of  such  county,  at  a  general  election, 
in  the  manner  that  now  is  or  may  be  provided  by  law ; 
and  if  a  majority  of  all  the  votes  cast  upon  that  question 
shall  be  against  township  organization,  then  such  organiza- 
tion shall  cease  in  said  county;  and  all  laws  in  force  in 
relation  to  counties  not  having  township  organization,  shall 
immediately  take  effect  and  be  in  force  in  such  county. 
No  two  townships  shall  have  the  same  name,  and  the  day 
of  holding  the  annual  township  meeting  shall  be  uniform 
throughout  the  state. 

6.  At  the  first  election  of  county  judges  under  this 
constitution  there  shall  be  elected  in  each  of  the  counties 
in  this  state,  not  under  township  organization,  three  of- 
ficers, who  shall  be  styled  "The  board  of  county  commis- 
sioners," who  shall  hold  sessions  for  the  transaction  of 
county  business  as  shall  be  provided  by  law.  One  of  said 
commissioners  shall  hold  his  office  for  one  year,  one  for 
tAvo  years,  and  one  for  three  years,  to  be  determined  by 
lot;  and  every  year  thereafter  one  such  officer  shall  be 
elected  in  each  of  said  counties  for  the  term  of  three  years. 

7.  The  county  aft'airs  of  Cook  coanty  shall  be  managed 
by  a  board  of  commissioners  of  fifteen  persons,  ten  of 
whom  shall  be  elected  from  the  City  of  Chicago,  and  five 
from  towns  outside  of  said  city,  in  such  manner  as  may 
be  provided  by  law. 

COUNTY  OFFICERS  AND   THEIR   COMPENSATION. 

8.  In  each  county  there  shall  be  elected  the  following 
county  officers,  at  the  general  election  to  be  held  on  the 


APPENDIX    C  377 

Tuesday  after  the  first  Monday  in  November,  A.  D.  1882: 
A  county  judge,  county  clerk,  sherifl:,  and  treasurer;  and 
at  the  election  to  be  held  on  the  Tuesday  after  the  first 
Monday  in  November,  A.  D.  1884,  a  coroner  and  clerk  of 
the  circuit  court  (who  may  be  ex-officio  recorder  of  deeds, 
except  in  counties  having  60,000  and  more  inhabitants,  in 
which  counties  a  recorder  of  deeds  shall  be  elected  at  the 
general  election  in  1884).  Each  of  said  officers  shall  enter 
upon  the  duties  of  his  office,  respectively,  on  the  first  ]\Ion- 
day  of  December,  after  his  election,  and  they  shall  hold 
their  respective  offices  for  the  term  of  four  years,  and 
until  their  successors  are  elected  and  qualified:  Provided, 
that  no  person  having  once  been  elected  to  the  office  of 
sheriff,  or  treasurer,  shall  be  eligible  to  re-election  to  said 
office  for  four  years  after  the  expiration  of  the  term  for 
which  he  shall  have  been  elected.* 

9.  The  clerks  of  all  the  courts  of  record,  the  treasurer, 
sheriff,  coroner  and  recorder  of  deeds  of  Cook  county,  shall 
receive,  as  their  only  compensation  for  their  services,  sal- 
aries to  be  fixed  by  law,  which  shall  in  no  case  be  as  much 
as  the  lawful  compensation  of  a  judge  of  the  circuit  court 
of  said  county,  and  shall  be  paid,  respectively,  only  out 
of  the  fees  of  the  office  actually  collected.  All  fees,  per- 
quisites and  emoluments  (above  the  amount  of  said  sal- 
aries) shall  be  paid  into  the  county  treasury.  The  number 
of  the  deputies  and  assistants  of  such  officers  shall  be  de- 
termined by  rule  of  the  circuit  court,  to  be  entered  of 
record,  and  their  compensation  shall  be  determined  by 
the  county  board. 

10.  The  county  board,  except  as  provided  in  section 
9  of  this  article,  shall  fix  the  compensation  of  all  county 
officers,  with  the  amount  of  their  necessary  clerk  hire,  sta- 
tionery, fuel  and  other  expenses,  and  in  all  cases  where 
fees  are  provided  for,  said  compensation  shall  be  paid  only 
out  of,  and  shall  in  no  instance  exceed,  the  fees  actually 


*This  section  as  amended  was  proposed  by  the  general  assembly, 
1879,  ratified  by  a  vote  of  the  people  Nov.  2,  1880,  proclaimed  adopted 
by  the  governor  Nov.  22,  1880. 


•"^78  putney's    HAU    hXAMlNAlluN    llhMKW 

collected;  they  shall  not  allow  either  of  tiiem  more  per 
annum  than  $1,500,  in  counties  not  exceeding  20,000  in- 
habitants; $2,000  in  counties  containing  20,000  and  not 
exceeding  30,000  inhabitants;  $2,500  in  counties  contain- 
ing 30,000  and  not  exceeding  50.000  inhal)itants;  $3,000 
in  counties  containing  50,000  and  not  exceeding  70,000 
inhabitants;  $3,500  in  counties  containing  70,000  and  not 
exceeding  100,000  inhabitants;  and  $4,000  in  counties  con- 
taining over  100,000  and  not  exceeding  250,000  inhab- 
itants;  and  not  more  than  $1,000  additional  compensation 
for  each  adtlitional  100,000  inliabitants:  Provided,  that 
the  compensation  of  no  otTicer  shall  l)e  increased  or  dimin- 
ished during  his  term  of  office.  All  fees  or  allowances  by 
them  received,  in  excess  of  their  said  ••(»iiipctisatinn.  shall 
be  i)aid  into  the  county  treasury, 

11.  The  fees  of  township  officers,  and  »»f  cai  li  cbiss  of 
county  officers,  shall  be  uniform  in  the  class  of  counties 
to  which  they  resj)ectively  ix'long.  The  compensation 
herein  provided  for  shall  apply  only  to  officers  hereafter 
elected,  but  all  fees  established  by  special  laws  sball  ceasi- 
at  the  adoption  of  this  constitution,  and  such  officers  sball 
receive  only  such  fees  as  ar«?  provided  by  general  law. 

12.  All  laws  fixing  the  fees  of  state,  county  and  town- 
ship officers,  sball  terminate  with  the  terms,  respectively, 
of  those  Avho  may  be  in  office  at  the  meeting  of  the  first 
general  assembly  after  the  adoption  of  this  constitution ; 
and  the  general  assembly  shall,  by  general  law.  uniform 
in  its  operation,  provide  for  and  regulate  the  fees  of  said 
officers  and  their  successors,  so  as  to  reduce  the  same  to  a 
reasonable  compensation  for  services  actually  rendered, 
but  the  general  assembly  may,  by  general  law,  classify  the 
counties  by  population  into  not  more  than  three  classes, 
and  regulate  the  fees  according  to  class.  This  article  shall 
not  be  construed  as  depriving  the  general  assembly  of  the 
power  to  reduce  the  fees  of  existing  officers. 

13.  Every  person  who  is  elected  to  any  office  in  this 
state,  who  shall  be  paid  in  whole  or  in  part  by  fees,  shall 
be  required  by  law  to  make  a  semi-annual  report,  under 


Ai'i'ENnix  c  379 

oath,   to   some  officer   1(t    !»<■   dcsi^aiated    by    law,   of  all   his 
fees  and  emoluments. 


Article  XI. 
CORPORATIONS. 

1.  No  corporation  shall  be  created  by  special  laAvs,  or 
its  charter  extended,  changed  or  amended,  except  those 
for  charitable,  educational,  penal  or  reformatory  purposes, 
which  are  to  be  and  iM^main  under  the  patronage  and  con- 
trol of  the  state,  but  the  general  assembly  shall  provide, 
by  general  laws,  for  the  organization  of  all  corporations 
hereafter  to  be  created. 

2.  All  existing  charters  or  grants  of  special  or  exclu- 
sive privileges,  under  which  organization  shall  not  have 
taken  place,  or  which  shall  not  have  been  in  operation 
within  ten  days  from  the  time  this  con.stitution  takes  effect, 
shall  thereafter  have  no  validity  or  effect  whatever. 

3.  The  general  assembly  shall  provide,  by  law,  that  in 
all  elections  for  directors  or  managers  of  incorporated 
companies,  every  stockholder  shall  have  the  right  to  vote, 
in  person  or  by  proxy,  for  the  number  of  shares  of  stock 
owned  by  him,  for  as  many  persons  as  there  are  directors 
or  managers  to  be  elected,  or  to  accumulate  said  shares, 
and  give  one  candidate  as  many  votes  as  the  number  of 
directors  multiplied  by  the  number  of  his  shares  of  stock 
shall  equal,  or  to  distribute  them  on  the  same  principle 
among  as  many  candidates  as  he  shall  think  fit ;  and  such 
directors  or  managers  shall  not  be  elected  in  any  other 
manner. 

4.  No  law  shall  be  passed  l)y  the  general  assembly 
granting  the  right  to  construct  and  operate  a  street  rail- 
road within  any  city,  town  or  incorporated  village,  with- 
out requiring  the  consent  of  the  local  authorities  having 
the  control  of  the  street  or  highway  proposed  to  be  oc- 
cupied l)y  such  street  railroad. 


380  I'UTNKY's    llAll    KXAMINAIInN     ItKVIKW 

BANKS. 

5.  No  state  bauk  sliall  luTcartcr  he  ereatrd,  nor  shall 
the  state  own  or  be  liable  for  any  titoek  in  any  eorpora- 
tion  or  joint  stock  company  or  association  for  banking 
purposes,  now  created,  or  to  be  hereafter  createil.  Xo  act 
of  the  general  assembly  authorizinf^j  or  creating  corpora- 
tions or  associations  with  i)ankin«^'  powers,  whether  of  is- 
sue, deposit  or  discount,  nor  arntiidiiients  thereto,  shall  go 
into  effect  or  in  any  manner  be  in  tone  unless  the  saint! 
shall  be  submitted  to  a  vote  of  the  pi'(»ple  at  the  general 
election  next  succeeding  the  passage  of  the  same,  and  be 
approved  by  a  majority  of  all  the  votes  cast  at  such  elec- 
tion for  or  against  such  law. 

6.  Every  stockholder  in  a  banking  rorponition  or  in- 
stitution shall  be  individually  responsible  and  liable  to  its 
creditors,  over  and  above  the  amount  of  stock  by  him  or 
her  held,  to  an  amount  e<jual  to  his  or  her  respective 
shares  so  held,  for  all  its  liabilities  accruing  while  he  or 
she  remains  such  stockholder. 

7.  The  suspension  of  specie  payments  by  banking  in- 
stitutions, on  their  circulation,  created  by  the  laws  of  this 
state,  shall  never  be  permitted  or  sanctioned.  Every  bank- 
ing association  now,  or  which  may  hereafter  be  organized 
under  the  laws  of  this  state,  shall  make  and  publish  a  full 
and  accurate  quarterly  statement  of  its  affairs  (which 
shall  be  certified  to,  under  oath,  by  one  or  more  of  its  of- 
ficers),  as  may  be  provided   by  law. 

8.  If  a  general  banking  law  shall  be  enacted,  it  shall 
provide  for  the  registry  and  countersigning,  by  an  officer 
of  the  state,  of  all  bills  or  paper  credit,  designed  to  cir- 
culate as  money,  and  require  security,  to  the  full  amount 
thereof,  to  be  deposited  with  the  state  treasurer,  in  the 
United  States  or  Illinois  state  stocks,  to  be  rated  at  ten 
per  cent  below  their  par  value;  and  in  case  of  a  deprecia- 
tion of  said  stocks  to  the  amount  of  ten  per  cent  below 
par,  the  bank  or  banks  owning  said  stocks  shall  be  re- 
quired to  make  up  said  deficiency  by  depositing  additional 
stocks.     And  said  law  shall  also  provide  for  the  recording 


APPENDIX    C 


381 


of  the  names  of  all  stockholders  in  such  corporations,  the 
amount  of  stock  held  by  each,  at  the  time  of  any  transfer 
thereof,  and  to  whom   such  transfer  is  made. 

RAILROADS. 

9.     Every  railroad  corporation  organized  or  doing  busi- 
ness  in   this   state,    under   the   laws   or    authority   thereof, 
shall  have   and   maintain   a  public   office   or  place  in  this 
state  for  the  transaction  of  its  business,  where  transfers 
of  stock  shall  be  made,   and  in  which  shall  be  kept,  for 
public  inspection,   books,  in  which   shall   be  recorded  the 
amount    of    capital    stock    subscribed,    and   by    whom;    the 
names  of  the  owners  of  its  stock,  and  the  amounts  owned 
by  them  respectively;  the  amount  of  stock  paid  in,   and 
by  whom;  the  transfer  of  said  stock;  the  amount  of  its 
assets  and  liabilities,  and  the  names  and  place  of  residence 
of  its  officers.     The  directors  of  every  railroad  corporation 
shall,  annually,  make  a  report,  under  oath,  to  the  auditor 
of   public   accounts,   or   some  officer   to   be   designated   by 
law,   of  all  their   acts   and   doings,  which   report  shall  in- 
clude  such  matters   relating  to   railroads   as  may   be  p"o- 
scribed  by  law.    And  the  general  assembly  shall  pass  laws 
enforcing    by    suitable    penalties    the    provisions    of    this 

section. 

10.  The  rolling  stock,  and  all  other  movable  property 
belonging  to  any  railroad  company  or  corporation  in  this 
state,  shall  be  considered  personal  property,  and  shall  be 
liable  to  execution  and  sale  in  the  same  manner  as  the 
personal  property  of  individuals,  and  the  general  assembly 
shall  pass  no  law  exempting  any  such  property  from 
execution  and  sale. 

11.  No  railroad  corporation  shall  consolidate  its  stock, 
property  or  franchise  with  any  other  railroad  corporation 
owning  a  parallel  or  competing  line ;  and  in  no  case  shall 
anv  consolidation  take  place,  except  upon  public  notice 
given,  of  at  least  sixty  days,  to  all  stockholders,  in  such 
manner  as  may  be  provided  by  law.  A  majority  of  the 
directors    of   any    railroad    corporation,    now    incorporated 


382  putney's    hah    KXAMINAiloN     ICI.MKU 

or  hereafter  to  be  ineorpuraleil  by   tbr  laws  oT  this  .slalc, 
shall  be  citizens  and  rt'siik-uts  of  this  statf. 

12.  Kaihvays  heretofore  eonstructeil,  or  that  may  here- 
after be  eonstriietecl  in  this  state,  are  htMvl)y  .li-clared  pub- 
lic' highways,  and  shall  be  free  to  all  p.-rsons  f.»r  thf  trans- 
l)ortation  of  tiu-ir  persons  ami  piu|HTty  tlifiron,  umbr 
such  rcj^'ulations  as  may  be  prescribed  i)y  law.  And  tin- 
general  assembly  shall,  from  time  to  tinu',  pass  laws  estab- 
lishing  reasonable  maxinunu  rates  of  charges  for  tbe  trans- 
j)ortation  of  passengers  and  freight  on  the  dilVereiil  rail- 
roads in  this  state. 

13.  No  railroad  corporation  shall  issjje  any  stock  or 
bonds,  except  for  money,  lal)or  or  property  actually  re- 
ceived, and  applied  to  the  purposes  for  which  such  cor- 
poration was  created;  and  all  stock  dividends,  and  other 
fictitious  increase  of  the  caj)ital  stock  or  indebtedness  of 
any  such  corporation,  shall  be  void.  Tlie  capital  stoc-k  of 
no  railroad  corporation  shall  be  increased  for  any  pur- 
pose, except  upon  giving  sixty  days'  public  notice,  in  sucli 
manner  as  may  be  provided  by  law. 

14.  The  exercise  of  the  power,  and  tiu'  right  of  eminent 
domain,  shall  ne\er  hv  so  construed  or  abridged  as  to  pre- 
vent the  taking,  by  the  general  assend)ly,  of  the  property 
and  franchises  of  incorporated  companies  already  organ- 
ized, and  subjecting  them  to  the  pul)lic  necessity  the  same 
as  of  individuals.  The  right  of  trial  by  jury  shall  be  held 
inviolate  in  all  trials  of  claims  for  compensation,  when,  in 
the  exercise  of  the  said  right  of  eminent  domain,  any  in- 
corporated company  shall  be  interested  either  for  or 
against  the  exercise  of  said  right. 

15.  The  general  assembly  shall  pass  laws  to  correct 
abuses  and  prevent  unjust  discrimination  and  extortion 
in  the  rates  of  freight  and  passenger  tariffs  on  the  different 
railroads  in  this  state,  and -enforce  such  laws  by  adequate 
penalties,  to  the  extent,  if  necessary  for  that  purpose,  of 
forfeiture  of  their  property  and  franchises. 


APPKN1>1X    C 


383 


Article  XII. 
.MILITIA. 

1.  The  militia  of  the  state  of  lllinoi.s  shall  consist  of 
all  able-bodied  male  persons,  resident  in  the  state,  between 
the  ages  of  eighteen  and  forty-five,  except  such  persons 
as  now  are,  or  hereafter  may  be,  exempted  by  the  laws 
of  the  United  States,  or  of  this  state. 

2.  The  general  assembly,  in  providing  for  the  organiza- 
tio'n,  equipment  and  discipline  of  the  militia,  shall  con- 
form  as  nearly  as  practicable  to  the  regulations  for  the 
government  of  the   armies   of  the  United   States. 

3.  All  militia  officers  shall  be  commissioned  by  the  gov- 
ernor, and  may  hold  their  commissions  for  such  time  as 
the   general  assembly  may  provide. 

4.  The  militia  shall  in  all  cases,  except  treason,  felony, 
or  breach  of  the  peace,  l)e  privileged  from  arrest  during 
their  attendance  at  musters  and  elections,  and  in  going  to 
and  returning  from  the  same. 

5.  The  military  records,  banners  and  relics  of  the  state, 
shall  be  preserved  as  an  enduring  memorial  of  the  patriot- 
ism and  valor  of  Illinois,  and  it  shall  be  the  duty  of  the 
general  asseml)ly  to  provide,  by  law,  for  the  safe  keeping 

of  the  same. 

6.  Xo  person  having  conscientious  scruples  against 
hearing  arms  shall  be  compelled  to  do  militia  duty  in  time 
of  peace:  Provided,  sueh  person  shall  pay  an  equivalent 
for  such  exemption. 

Article  XIII. 
AVAPtEIIOUSP:S. 

1.  All  elevators  or  storehouses  where  grain  or  other 
property  is  stored  for  a  compensation,  whether  the  prop- 
erty stored  be  kept  separate  or  not,  are  declared  to  be 
public  warehouses. 

2.  The  owner,  lessee  or  manager  of  each  and  every 
public  warehouse  situated  in  any  town  or  city  of  not  less 
than    100.000    inhabitants,    shall    make    weekly    statements 


384  putney's  mah  kxaminatiun  ukvilw 

under  uuth,  l)t'l'ui"e  .souk-  ortieer  to  be  tU'.sij^natttl  by  luw, 
and  keep  the  same  posted  in  some  eonsj)ieuous  place  in 
the  office  of  such  -warehoiise,  and  siiall  also  file  a  copy  for 
public  examination  in  such  place  as  siiall  he  designated 
by  law,  which  statement  shall  correctly  set  forth  the 
amount  and  grade  of  each  and  every  kind  of  grain  in  such 
warehouse,  together  with  such  other  property  as  nuiy  be 
stored  therein,  and  what  warehouse  receipts  have  been 
issued,  and  aic,  at  the  time  of  making  such  statement,  out- 
standing therefor;  and  shall,  on  the  copy  postetl  in  the 
warehouse,  note  daily  such  changes  as  may  be  made  in 
the  ((uantity  aiul  grade  of  grain  in  such  warehouse;  and 
the  different  grades  of  grain  shipped  in  sepai-ate  lots  shall 
not  be  mixed  with  inferior  or  superior  grades  without  the 
consent  of  the  owner  or  consignee  thereof. 

8.  The  owners  of  property  stored  in  any  warehouse, 
or  holder  of  a  receipt  for  the  same,  shall  always  be  at 
liberty  to  examine  such  property  stored,  ami  all  the  books 
and  records  of  the  warehouse  in  regard  to  such  property. 

4.  All  railroad  companies  and  other  common  carriers 
on  railroads  shall  weigh  or  measure  grain  at  points  where 
it  is  shipped,  and  receipt  for  the  full  amount,  and  shall 
be  responsible  for  the  delivery  of  such  amount  to  the 
owner  or  consignee  thereof,  at  the  place  of  designation. 

5.  All  lailioad  companies  receiving  and  transporting 
grain  in  bulk  or  otherwise,  shall  deliver  the  same  to  any 
consignee  thereof,  or  any  elevator  or  public  warehouse  to 
which  it  may  be  consigned,  provided  such  consignee  or 
the  elevator  or  public  warehouse  can  be  reached  by  any 
track  owned,  leased  or  used,  or  which  can  be  used,  by 
such  railroad  companies ;  and  all  railroad  companies  shall 
permit  connections  to  be  made  with  their  track,  so  that 
any  such  consignee,  and  any  public  warehouse,  coal  bank 
or  coal  yard,  may  be  reached  by  the  cars  on  said  railroad. 

6.  It  shall  be  the  duty  of  the  general  assembly  to  pass 
all  necessary  laws  to  prevent  the  issue  of  false  and  fraudu- 
lent warehouse  receipts,  and  to  give  full  effect  to  this 
article   of  the   constitution,  which   shall   be   liberally   con- 


APPENDIX    c  385 

strued  so  as  to  protect  producers  and  shippers.  And  the 
enumeration  of  the  remedies  herein  named  shall  not  be 
construed  to  deny  to  the  general  assembly  the  power  to 
prescribe  by  law  such  other  and  further  remedies  as  may 
be  found  expedient,  or  to  deprive  any  person  of  existing 
common  law   remedies. 

7.  The  general  assembly  shall  pass  laws  for  the  inspec- 
tion of  grain,  for  the  protection  of  producers,  shippers  and 
receivers  of  grain  and  j)roduce. 

Article  XIV. 

amend:\iexts  to  the  constitution. 

1.  "Whenever  two-thirds  of  the  members  of  each  house 
of  the  general  assembly  shall,  by  a  vote  entered  upon  the 
journals  thereof,  concur  that  a  convention  is  necessary  to 
revise,  alter  or  amend  the  constitution,  the  question  shall 
be  submitted  to  the  electors  at  the  next  general  election. 
If  a  majority  voting  at  the  election  vote  for  a  convention, 
the  general  assembly  shall,  at  thf  next  session,  provide 
for  a  convention,  to  consist  of  double  the  number  of  mem- 
bers of  the  senate,  to  be  elected  in  the  same  manner,  at 
the  same  places  and  in  the  same  districts.  The  general 
assembly  shall,  in  the  act  calling  the  convention,  designate 
the  day,  hour  and  place  of  its  meeting,  fix  the  pay  of  its 
members  and  officers,  and  provide  for  the  payment  of  the 
same,  together  with  expenses  necessarily  incurred  by  the 
convention  in  the  performance  of  its  duties.  Before  pro- 
ceeding, the  members  shall  take  an  oalh  to  support  the 
constitution  of  the  United  States,  and  of  the  state  of  Illi- 
nois, and  to  faithfully  discharge  their  duties  as  members 
of  the  convention.  The  (|ualification  of  members  shall  be 
the  same  as  that  of  membei's  of  the  senate,  and  vacancies 
occurring  shall  be  filled  in  the  manner  provided  for  filling 
vacancies  in  the  general  assembly.  Said  convention  shall 
meet  within  three  months  after  sueli  election,  and  prepare 
such  revision,  alteration  or  amendments  of  the  constitu- 
tion  as   shall  be   deemed  necessary,   which    shall    be   sub- 


3}^(}  ITINl^    >    llAlt     KXAMlNAlln.N     ItKVlhW 

mittea  to  tin-  (•l<(t(.rs  lor  tluir  ratiti<-alion  or  rejection, 
at  an  election  ai)j)oiiited  l»y  llic  convention  for  that  pur- 
pose,  not  less  than  two  nor  more  tlian  six  months  after 
the  acljouriniienl  thereof;  and  unless  so  suiiniitted  ami 
approved  l)\  a  majority  of  tin-  rln-tors  votinj;  at  the  elec- 
tion,   no    sufii    revision,    altrrations     oi-     amendim-nts    shall 

take  effect. 

2.  Amendments  to  this  constitution  may  lie  proposed 
in  either  house  of  the  ^^n^n.-ral  assemhly.  and  if  the  sann- 
shall  be  voted  for  by  two-thirds  of  all  the  m.-mbers  elected 
to  each  of  the  two  houses,  such  pro|)osed  amendments,  to- 
gether with  the  yeas  and  nays  of  each  house  thereon,  shall 
be  entered  in  full  on  their  respective  journals;  and  said 
amendments  shall  l)e  submitted  to  the  electors  of  this  state 
for  adoption  or  rejection,  at  the  next  election  of  members 
of  the  general  assembly,  in  such  manner  as  may  be  pre- 
scribed by  law.  The  proposed  amendments  shall  be  pub- 
lished in  full  at  least  thr<M"  months  preceding  the  election, 
and  if  a  majority  mI'  tlie  electors  voting  at  said  election 
shall  vote  for  the  ])roposcd  amendments,  th<\v  shall  become 
a  part  of  this  constitution.  But  the  general  assembly  shall 
have  no  power  to  propose  amendments  to  more  than  one 
article  of  this  constitution  at  the  same  session,  nor  to  the 
same  article  oftener  than  once  in  four  years. 


Separate  Sections. 
ILLINOIS  CENTRAL  RAILROAD. 
No  contract,  obligation  or  liability  whatever,  of  the  Illi- 
nois Central  Railroad  Company,  to  pay  any  money  into 
the  state  treasury,  nor  any  lien  of  the  state  upon,  or  right 
to  tax  property  of  said  company  in  accordance  with  the 
provisions  of  the  charter  of  said  company,  approved  Feb- 
ruary 10th,  in  the  year  of  our  Lord  1851,  shall  ever  be 
released,  suspended,  modified,  altered,  remitted,  or  in  any 
manner  diminished  or  impaired  by  legislative  or  other  au- 
thority; and  all  moneys  derived  from  said  company,  after 
the  payment   of  the  state   debt,   shall   be   appropriated  and 


APPENDIX    C  387 

set  apart  for  the  payment  of  the  ordinary  expenses  of  the 
state  government,   and  for  no  other  purposes  whatever. 

MUNICIPAL   SUBSCRIPTIONS   TO   RAILROADS   OR 
PRIVATE   CORPORATIONS. 

No  county,  city,  town,  township  or  other  municipality, 
shall  ever  become  subscriber  to  the  capital  stock  of  any 
i-ailroad  or  private  corporation,  or  make  donation  to  or 
loan  its  credit  in  aid  of  such  corporation:  Provided,  how- 
ever, that  the  adoption  of  this  article  shall  not  be  con- 
strued as  affecting  the  right  of  any  such  municipality  to 
make  such  subscriptions  where  the  same  have  been  au- 
thorized, under  existing  laws,  by  a  vote  of  the  people  of 
such  municipalities  prior  to  such  adoption. 

CANAL. 

The  Illinois  and  :\lichigan  Canal  shall  never  be  sold  or 
leased  until  the  specific  proposition  for  the  sale  or  lease 
thereof  shall  first  have  been  submitted  to  a  vote  of  the 
people  of  the  state  at  a  general  election,  and  have  been 
approved  by  a  majority  of  ajl  the  votes  polled  at  such 
election.  The  general  assembly  shall  never  loan  the  credit 
of  the  state,  or  make  appropriations  from  the  treasury 
thereof,  in  aid  of  railroads  or  canals:  Provided,  that  any 
surplus  earnings  of  any  canal,  waterway  or  power  may  be 
appropriated  for  its  enlargement,  maintenance  or  exten- 
sion. 

Provided,  further,  tluit  the  general  assembly  may,  by 
suitable  legislation,  provide  for  the  construction  of  a  deep 
waterway  or  canal  from  the  present  water  power  plant 
of  the  Sanitary  District  of  Chicago,  at  or  near  Lock- 
port,  in  the  township  of  Lockport,  in  the  county  of  Will, 
to  a  point  in  the  Illinois  river  at  or  near  Utica,  which  may 
be  practical  for  a  general  plan  and  scheme  of  deep  water- 
way along  a  route,  which  may  be  deemed  most  advan- 
tageous for  such  plan  of  deep  waterway ;  and  for  the  erec- 
tion, equipment  and  maintenance  of  power  plants,  locks, 
bridges,    dams   and    appliances   sufficient    and    suitable   for 


388  I'LTNKYS    HAK    KXAMlNAlluN     KKMKW 

the  develupineiit  ami  utilization  ol"  tlie  water  power  llu*r.-. 
of;  and  authorize  tlu'  issue,  from  time  to  time,  of  bonds 
of  this  state  in  a  total  amount  not  to  exeeed  twenty  mil- 
lion dollars  which  shall  draw  interest,  j)ayahle  semi-an- 
nually, at  a  rate  not  to  exceed  lour  per  cent  per  annum, 
the  proceeds  whereof  may  be  applied  as  the  general  as- 
sembly may  provide,  in  the  construction  of  said  waterway 
and  in  the  erection,  e(|uipment  and  maintenance  of  said 
power  plants,   locks,   bridcjes,   dams   and   applian<'es. 

All  power  developed  from  said  waterway  may  be  leased 
in  part  or  in  whole,  as  the  j^'cueral  assembly  may  by  law 
provide;  but  in  the  event  of  any  lease  beinpr  so  executed, 
the  rental  speeifietl  therein  for  water  power  shall  be  sub- 
ject to  a  revaluation  eaeh  ten  years  of  the  term  created. 
and  the  income  therefrom  shall  be  paid  into  tlu-  treasury 
of  the  state. 

CONVICT  LABOR. 

Hereafter  it  shall  be  unlawful  for  the  commissioners  of 
any  penitentiary  or  other  reformatory  institution  in  the 
state  of  Illinois,  to  let  by  contract  to  any  person  or  per- 
sons, or  corporations,  the  labor  of  any  convict  confined 
within  said  institution.  (This  section  was  submitted  to 
the  voters  at  the  election  in  November,  1886,  as  an  amend- 
ment, was  adopted,  and  bocame  a  part  of  this  Constitu- 
tion.) 

SCHEDULE. 

That  no  inconvenience  may  arise  from  the  alterations 
and  amendments  made  in  the  constitution  of  this  state, 
and  to  carrj'  the  same  into  complete  effect,  it  is  hereby  or- 
dained and  declared: 

1.  That  all  laws  in  force  at  the  adoption  of  this  con- 
stitution, not  inconsistent  therewith,  and  all  rights,  actions, 
prosecutions,  claims,  and  contracts  of  this  state,  individ- 
uals, or  bodies  corporate,  shall  continue  to  be  as  valid  as 
if  this  constitution  had  not  been  adopted. 

2.  That  all  fines,  taxes,  penalties  and  forfeitures,  due 
and  owing  to  the  state  of  Illinois  under  the  present  con- 


APPENDIX    C 


389 


stitution  and  laws,  shall  inure  to  the  use  of  the  people  of 
the  state  of  Illinois,  under  this  constitution. 

3.  Recognizances,  bonds,  obligations,  and  all  other  in- 
struments entered  into  or  executed  before  the  adoption 
of  this  constitution,  to  the  people  of  the  state  of  Illinois, 
to  any  state  or  county  officer  or  public  body,  shall  remain 
binding  and  valid ;  and  rights  and  liabilities  upon  the  same 
shall  continue,  and  all  crimes  and  misdemeanors  shall  be 
tried  and  punished  as  though  no  change  had  been  made 
in  the  constitution  of  this  state. 

4.  County  courts  for  the  transaction  of  county  business 
in  counties  not  having  adopted  township  organization, 
shall  continue  in  existence  and  exercise  their  present  juris- 
diction until  the  board  of  county  commissioners  provided 
in  this  constitution  is  organized  in  pursuance  of  an  act  of 
the  general  assembly;  and  the  county  courts  in  all  other 
counties  shall  have  the  same  power  and  jurisdiction  they 
now  possess  until  otherwise  provided  by  general  law. 

5.  All  existing  courts  which  are  not  in  this  constitu- 
tion specifically  enumerated  shall  continue  in  existence  and 
exercise  their  present  jurisdiction  until  otherwise  provided 

by  law. 

6.  All  persons  now  filling  any  office  or  appointment 
shall  continue  in  the  exercise  of  the  duties  thereof  accord- 
ing to  their  respective  commissions  or  appointments,  un- 
less bv  this  constitution  it  is  otherwise  directed. 

*■  *  *  *  *  *  * 

18.  xVll  laws  of  the  state  of  Illinois,  and  all  official  writ- 
ings, and  the  executive,  legislative  and  judicial  proceed- 
ings, shall  be  conducted,  preserved  and  published  in  no 
other  than  the  English  language. 

19.  The  general  assembly  shall  pass  all  laws  necessary 
to  carry  into  efi'ect  the  pi-o visions  of  this  constitution. 

20.  The  circuit  clerks  of  the  different  counties  having 
a  population  over  sixty  thousand  shall  continue  to  be  re- 
corders (ex-officio)  for  their  respective  counties,  under  this 
constitution,  until  the  expiration  of  their  respective  terms. 

21.  The  judges  of  all  courts  of  record  in  Cook  county 


390  PUTNEV'>    IJAK    tXAMlNAIloN     KIMIU- 

shall,  in  lieu  of  any  salary  jintvitU-d  lui  in  iliis  constitu- 
tion, r»'iMi\e  tin;  compensation  now  provith-d  Ity  law  until 
the  atijouriimnit  of  the  lii'st  session  of  the  LTtM'ni'jil  ass»'iu- 
l)ly  alter  the  ailoption  ol'  this  eonstituti(»n. 

22.  Th(  present  jiul^e  of  the  eireiiit  court  of  I'ook 
county  shall  continue  tt>  hohl  the  circuit  court  of  Lake 
county  until  otherwise  |)rovi(lecl  by  law. 

2.'^.  \Vhen  this  constitution  shall  he  atlopl»"(l,  and  take 
elTect  as  the  supreme  law  of  the  state  of  Illinois,  the  two- 
mill  tax  provided  to  he  annually  assessed  and  collected 
upon  each  dollar's  worth  of  taxable  ])roperty,  in  aildition 
to  all  other  taxes,  as  set  forth  in  article  tifteen  of  the  now 
existing  constitution,  shall  cease  to  be  assessed  after  the 
year  of  our  Lord  one  thousand  ei»rht  hundred  and  seventy. 

24.  Xothin«r  contained  in  this  constitution  shall  be  so 
construed  as  to  deprive  the  .u:encral  asseiiiMy  id'  power  to 
authorize  the  city  of  Quincy  to  create  any  indel)tedness 
for  railroad  or  municipal  ])urposes.  for  which  tht»  people* 
of  saitl  city  shall  have  voted,  aiul  to  which  they  shall  have 
•jiveu,  by  such  vote,  their  assent,  prior  to  the  thirteenth 
day  of  December,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  sixty-nine:  Provided,  that  no  such  in- 
debtedness, so  created,  shall  in  any  part  thereof  be  i>aid 
by  the  state,  or  from  any  state  revenue,  tax  or  fund,  but 
the  same  shall  be  paid,  if  at  all,  by  the  said  city  of  (^^iiincy 
alone,  and  by  taxes  to  be  levied  npon  the  taxable  proi)erty 
thereof:  And,  provided,  further,  that  the  general  assem- 
bly shall  have  no  power  in  the  premises  that  it  could  not 
exercise  nnder  the  present  constitution  of  this  state. 

25.  In  case  this  constitution  and  the  articles  and  sec- 
tions submitted  separately  be  adopted,  the  existing  con- 
stitution shall  cease  in  all  its  provisions ;  and  in  case  this 
constitution  be  adopted,  and  any  one  or  more  of  the 
articles  or  sections  sulmiitted  separately  be  defeated,  the 
provisions  of  the  existing  constitution  (if  any")  on  the  same 
subject  shall  remain  in  force. 

26.  The   provisions   of   this   constitution    re(|uired    to    be 


APPENDIX    C  391 

executed   prior  to  the   adoption   or  rejection   thereof  shall 
take  effect  and  be  in  force  immediately. 

Done  in  con\ention  at  the  capitol,  in  the  city  of  Spring- 
field, on  the  thirteenth  day  of  May,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy,  and  of  the 
independence  of  the  United  States  of  America  the  ninety- 
fourth. 


APPENDIX  D. 


UNIFORJil  NEGOTLVBLE  INSTRU:\IENTS  ACT. 
Title  I. — Negotiable  Instruments  in  General. 
(The  text  of  the  original  act  is  given  in  full,  the  changes 
in    the    Illinois    statutes,    in    addition,    being    inserted     in 
brackets.) 

Article  I. — Form  and  Interpretation. 
[Negotiable  Instrument  Must  Conform  to  What  Require- 
ments.]     §     1.     An  instrument  payable   in   luouey,   to   be 
negotiated,   must  conform  to   the   following   requirements: 

1.  It  must  be  in  writing  and  signed  by  the  maker  or 
drawer. 

2.  ]\lust  contain  an  unconditional  promise  or  order  to 
pay  a  sum  certain  in  money. 

3.  Must  be  payable  on  demand  or  at  a  fixed  or  determi- 
nable future  time. 

4.  Must  be  payable  to  order  or  to  bearer,  and, 

(4.  Must  be  payable  to  the  order  of  a  specified  person 
or  to  bearer;  and,) 

5.  Where  the  instrument  is  addressed  to  a  drawee,  he 
must  be  named  or  otherwise  indicated  therein  with  rea- 
sonable certainty. 

[Sum  Payable  Within  the  Act.]  §  2.  The  sum  payable 
is  a  sum  certain  within  the  meaning  of  this  act,  although 
it  is  to  be  paid: 

1.  With  interest;  or 

2.  By  stated  installments ;  or 

3.  By  stated  installments,  with  a  provision  that  upon 
default  in  payment  of  any  installment,  or  of  interest,  the 
whole  shall  become  due ;  or 

4.  With  exchange,  whether  at  a  fixed  rate  or  at  the 
current  rate ;  or 

393 


394  PLTNKV'>    IIAK    hXAMlN  \lIoN     1(1.\11,U 

.").  Witll  costs  of  colk-e-tioli  or  an  atlnrinv  .s  itc,  in  casr 
payment  shall  not  lie  made  at  maturity. 

[Promise  to  Pay — Unconditional — What  Constitutes.) 
>5  A.  An  umiiialilit'd  ortlcr  or  promist'  to  pay  is  uncondi- 
tional within  the  nicauinj^  of  this  act,  thou^jh  coupleti  with: 

1.  An  indication  of  a  particular  fund  out  of  which  rc- 
ind)urscnicnt  is  tt)  i)c  made,  or  a  j)articular  account  to  he 
debited  with  tiie  amount ;  or 

2.  A  statement  of  the  transaction  which  j,'ives  rise  to 
the  instrument. 

But  an  ortler  or  promise  to  pay  out  of  a  particulai*  fun<l 
is  not  unconditional. 

[Time  Payable.)  Jj  4.  An  instrument  is  payahle  at  a 
determinal)lc  future  time,  within  the  meaninj;  of  this  act, 
which  is  expressed  to  l)e  payable: 

1.  At  a  fixed  period  after  date  or  sight;  or 

2.  On  or  before  a  fixed  or  determinable  future  time 
specified  therein ;  or 

■i.  On  or  at  a  fixed  period  aftei-  the  oecini-enci'  of  a  speci- 
fied event,  which  is  certain  to  happen,  though  the  time  of 
happening  be  uncertain. 

An  instrument  payable  upon  a  eontingeney  is  not  ne- 
gotiable, and  the  happening  of  the  event  does  not  cui-e  the 
defect. 

[Negotiability — Affected  by  Including  Act  Additional  to 
Payment.  I  v^  5.  An  instrument  which  contains  an  order 
or  promise  to  do  an  act  in  addition  to  the  payment  of 
money  is  not  negotiable  under  this  act.  But  the  negotiable 
character  of  an  instrument  otherwise  negotiable  is  not  af- 
I'ected  by  a  provision  which : 

1.  Authorizes  the  sale  of  collateral  securities  in  case  the 
instrument  be  not  paid  at  maturity ;  or 

2.  Authorizes  a  confession  of  judgment  if  the  instru- 
ment be  not  paid  at  maturity;  or 

(2.     Authorizes  a   confession  of  judgment;  or) 

3.  Waives  the  benefit  of  any  law  intended  for  the  ad- 
vantage or  protection  of  the  obligor;  or 

(3.  Waives  the  benefit  of  any  law  intended  for  the  ad- 
vantage or  protection  of  the  obligator;  or) 


APPENDIX    D 


395 


4.  Gives  the  holder  aii  election  to  require  something  to 
be  done  in  lieu  of  payment  of  money. 

But  nothing  in  this  section  shall  validate  any  provision 
or  stipulation  otherwise  illegal  or  authorize  the  waiver  of 
exemptions  from  exeeution. 

[Validity  and  Negotiability,  How  Not  Affected.]  §  6. 
The  validity  and  negotiable  character  of  an  instrument  are 
not  aflected  by  the  fact  that : 

1.  It  is  not  dated ;  or 

2.  Does  not  specify  the  value  given,  or  that  any  value 
has  been  given  therefor;  or 

3.  Does  not  specify  the  place  where  it  is  drawn  or  the 
place  were  it  is  payable ;  or 

4.  Bears  a  seal;  or 

5.  Designates  a  particular  kind  of  current  money  in 
which  payment  is  to  be  made. 

(5.  Is  payable  in  currency  or  current  funds;  or  desig- 
nates a  particular  kind  of  current  money  in  which  payment 
is  to  be  made.) 

[Payable  on  Demand.]  ^  7.  An  instrument  is  payable 
on  demand : 

1.  AVhere  it  is  expressed  to  be  payable  on  demand,  or 
at  sight,  or  on  presentation ;  or 

2.  In  which  no  time  for  payment  is  expressed. 
AVhere   an   instrument   is   issued,    accepted    or    indorsed 

when  over  due,  it  is,  as  regards  the  person  so  issuing,  ac- 
cepting or  indorsing  it,  payable  on  demand. 

[Payable  to  Order.]  §  8.  The  instrument  is  payable 
to  order  where  it  is  drawn  payable  to  the  order  of  a  speci- 
fied person  or  to  him  or  his  order.  It  may  be  drawn  pay- 
able to  the  order  of: 

1.  A  payee  who  is  not  maker,  drawer  or  drawee;  or 

2.  The  drawer  or  maker;  or 

3.  The  drawee;  or 

4.  Two  or  more  payees  jointly;  or 

5.  One  or  some  of  several  payees;  or 
(5.     One  or  more  of  several  payees;  or) 

6.  The  holder  of  an  office  for  the  time  being. 

7.  An  instrument  payable  to  the  estate   of  a  deceased 


396  FUTNEV'.S    HAH    KXAMIN  A  I  l<  ).\    UEVIKW 

peiscjii  shall  'oc  dt'eUK-il  payablt-  Id  tin-  order  i)i  tin-  atl- 
ministratur  or  executor  ol'  his  estate. 

Where  the  instrument  is  payahh*  to  order,  the  payee 
must  be  named  or  otherwise  indicated  therein  with  I'ea- 
sonable  eertainty. 

[Payable  to  Bearer. !  §  J).  The  instrument  is  payal>le 
to  bearer : 

1.  AVlien  it  is  expressed  to  be  so  payable;  or 

2.  AVhen  it  is  payable  to  a  pei-smi  named  therein  or 
bearer;  or 

8.  AVhen  it  is  payable  to  tiu'  order  of  a  fictitious  or  non- 
existing  person,  and  such  I'aet  was  known  to  the  pei-son 
raaking  it  so  i)ayable ;  or 

i^.  AVhen  it  is  payable  to  the  oi-dei-  of  a  person  known 
by  the  diawer  or  maker  to  l)e  fictitious  oi-  non-existent  or 
of  a  li\ing  person  not  intended  to  ha\e  any  interest  in  it; 
or) 

4.  When  the  name  of  the  payee  does  not  purpoi't  to  be 
the  name  of  any  person;  or 

5.  When  the  only  or  last  endorsement  is  an  entlorsement 
in  blank. 

(5.  When  although  originally  payable  to  order,  it  is 
indorsed  in  blank  by  the  payee  or  a  subsequent  endorsee.) 

jNeed  Not  Follow  Words  of  Statute.]  i<  10.  The  ne- 
gotiable instrument  need  not  follow  the  language  of  this 
act,  but  any  terms  are  sufficient  Avhich  clearly  indicate  an 
intention  to  conform  to  the  requirements  thereof. 

[Date  Deemed  Date.l  §  H-  When  the  instrument  or 
an  acceptance  or  any  indorsement  thereon  is  dated,  such 
date  is  deemed  prima  facie  to  be  the  true  date  of  the  mak- 
ing, drawing,  acceptance  or  indorsement,  as  the  case  may 
be. 

[Antedated,  or  Post-dated  Instrument  Takes  Effect  From 
Delivery.]  §  12.  The  instrument  is  not  invalid  for  the 
reason  only  that  it  is  antedated  or  post-dated,  provided  this 
is  not  done  for  an  illegal  or  fraudulent  purpose.  The  per- 
son to  whom  an  instrument  so  dated  is  delivered  acquires 
the  title  thereto  as  of  the  date  of  delivery. 


API'K.NDIX    D  397 

[Undated— Any  Holder  May  Insert  Date. J  §  13.  AVhen 
au  instrument  expressed  to  be  payable  at  a  tixed  period 
after  date  is  issued  undated,  or  where  the  acceptance  of  an 
instrument  payable  at  a  fixed  period  after  sight  is  undated, 
any  holder  may  insert  therein  the  true  date  of  issue  or  ac- 
ceptance, and  the  instrument  shall  be  payable  accordingly. 
The  insertion  of  a  wrong  date  does  not  avoid  the  instru- 
ment in  the  hands  of  a  subsequent  holder  in  due  course, 
but  as  to  him,  the  date  so  inserted  is  to  be  regarded  as  the 
true  date. 

[Signed  in  Blank,  may  Be  Filled  by  Holder  After  De- 
livery.] §  14.  AVhere  the  instrument  In  Avaiiting  in  any 
material  particular,  the  person  in  possession  thereof  has  a 
prima  facie  authority  to  complete  it  by  filling  up  the  blanks 
therein.  And  a  signature  on  a  l>iank  paper  delivered  by 
the  person  making  the  signature  in  order  that  the  paper 
may  be  converted  into  a  negotiable  instrument  operates  as 
a  prima  facie  authority  to  fill  it  up  as  such  for  any  amount. 
In  order,  however,  that  any  such  instrument  when  com- 
pleted may  be  enforced  against  any  person  who  became  a 
party  thereto  prior  to  its  completion,  it  must  be  filled  up 
strictly  in  accordance  with  the  authority  given  and  within 
a  reasonable  time.  But  if  any  such  instrument,  after  com- 
pletion, is  issued  or  negotiated  to  a  holder  in  due  course  it 
is  valid  and  effectual  for  all  purposes  in  his  hands,  and  he 
may  enforce  it  as  if  it  had  been  filled  up  strictly  in  accord- 
ance with  the  authority  given  and  within  a  reasonable 
time. 

[Incomplete  Instrument  Negotiated  Without  Authority, 
Void.]  §  15.  Where  an  incomplete  instrument  has  not 
been  delivered  it  will  not,  if  completed  and  negotiated, 
without  authority,  be  a  valid  contract  in  the  hands  of  any 
holder,  as  against  any  person  whose  signature  was  placed 
thereon  before  delivery. 

[Delivery  Required— When  Presumed.]  §  16.  Every 
contract  on  a  negotiable  instrument  is  incomplete  and  re- 
vocable until  delivery  of  the  instrument  for  the  purpose 
of  giving   effect   thereto.     As   between   immediate   parties. 


398  putney's  hau  examination  uhvihw 

and  as  regards  a  remote  party  other  than  a  holder  in  due 
course,  the  delivery,  in  order  to  be  eft'eetual,  must  be  made 
either  by  or  under  the  authority  of  the  party  making, 
drawing,  accepting  or  indorsing,  as  the  case  may  be;  and 
in  such  case  the  delivery  may  be  shown  to  have  been  con- 
ditional or  lor  a  special  purpose  only,  and  not  for  the  pur- 
pose of  transferring  the  property  in  the  instrument.  But 
where  the  instrument  is  in  the  hands  of  a  holder  in  due 
course,  a  valid  delivery  thereof  by  all  pai-tit-s  prior  to  him 
so  as  to  make  them  liable  to  him,  is  conclusively  presumed. 
And  where  the  instrument  is  no  longer  in  the  possession  of 
a  party  whose  signature  appears  thereon,  a  valid  and  in- 
tentional delivery  by  him  is  presumed  until  the  contrary  is 
proved. 

I  Ambiguities  and  Omissions — Rules  of  Construction.  | 
i<  17.  Where  the  language  of  the  instrument  is  ambigu- 
ous, or  there  are  omissions  therein,  the  following  rules  of 
construction  apply : 

1.  Where  the  sum  payable  is  expressed  in  words  and 
also  in  figures  and  there  is  a  discrepancy  between  the  two, 
the  sum  denoted  by  the  words  is  the  sum  payable ;  but  if 
the  words  are  ambiguous  or  uncertain,  reference  may  be 
had  to  the  figures  to  fix  the  amount. 

2.  Where  the  instrument  provides  for  the  payment  of 
interest,  without  specifying  the  date  from  which  interest 
is  to  run.  the  interest  runs  from  the  date  of  the  instrument, 
and  if  the  instrument  is  undated,  from  the  issue  thereof, 

3.  Where  the  instrument  is  not  dated,  it  will  be  consid- 
ered to  be  dated  as  of  the  time  it  was  issued. 

4.  Where  there  is  conflict  between  the  written  and 
printed  provisions  of  the  instrument,  the  written  provisions 
prevail. 

5.  Where  the  instrument  is  so  ambiguous  that  there  is 
doubt  whether  it  is  a  bill  or  a  note,  the  holdei-  may  treat  it 
as  either,  at  his  election. 

6.  Where  a  signature  is  so  placed  upon  the  instrument 
that  it  is  not  clear  in  what  capacity  the  person  making  the 
same  intended  to  sign,  he  is  to  be  deemed  an  indorser. 


APPENDIX    D  399 

7.  Where  an  instrument  containing  the  words  "I  prom- 
ise to  pay"  is  signed  by  two  or  more  persons,  they  are 
deemed  to  be  jointly  and  severally  lial)le  thereon. 

[Signature — Trade  or  Assumed  Name.]  §  18.  No  per- 
son is  liable  on  the  instrument  whose  signature  does  not 
appear  thereon,  except  as  herein  otherwise  expressly  pro- 
vided. But  one  who  signs  in  a  trade  or  assumed  name  will 
be  liable  to  the  same  extent  as  if  he  had  signed  his  own 
name. 

[May  be  Signed  by  Agent.j  §  19.  The  signature  of 
any  party  may  be  made  by  a  duly  authorized  agent.  No 
particular  form  of  appointment  is  necessary  for  this  pur- 
pose; and  the  authority  of  the  agent  may  be  established 
as  in  other  cases  of  agency. 

I  Descriptive  Words  Added  to  Signature — When  Sur- 
plusage.] §  20.  Where  the  instrument  contains,  or  a  per- 
son adds  to  his  signature,  words  indicating  that  he  signs 
for  or  on  behalf  of  the  principal,  or  in  a  representative 
capacity,  he  is  not  liable  on  the  instrument  if  he  was  duly 
authorized ;  but  the  mere  addition  of  words  describing  him 
as  agent,  or  as  filling  a  representative  character  without 
disclosing  his  principal,  does  not  exempt  him  from  personal 
liability. 

[Signature  by  Procuration — Notice  of  Limited  Author- 
ity.] §  21.  A  signature  by  "procuration"  operates  as 
notice  that  the  agent  has  but  limited  authority  to  sign,  and 
the  principal  is  bound  in  case  the  agent  in  so  signing  acted 
within  the  actual  limits  of  his  authority. 

[Assignment  by  Infant  or  Corporation  Passes  Title.] 
§  22.  The  indorsement  or  assignment  of  the  instrument 
by  a  corporation  or  by  an  infant  passes  the  property  there- 
in, notwithstanding  that  for  want  of  capacity  the  corpora- 
tion or  infant  may  incur  no  liability  thereon. 

[Forged  Signature.]  §  23.  Where  a  signature  is 
forged  or  made  without  authority  it  is  wholly  inoperative, 
and  no  right  to  retain  the  instrument  or  to  give  a  discharge 
thereof,  or  to  enforce  payment  thereof  against  any  party 
thereto,  can  be  acquired  through  or  under  .such  signature. 


400  PITNEY's    UAH    tXAMlN.VnoN    ULVltW 

unless  the  {)arty  against  wUdiii  it  is  souglit  to  enforce  such 
riglit  is  precluded  from  setting  up  the  forgery  or  want  of 

authority. 

Article  II.— Consideralion. 
[Consideration  Presumed.]  J;  24.  Kvery  negotiable  in- 
strument is  deemed  prima  facie  to  have  been  issued  for  a 
valuable  consideration,  and  every  person  whose  signature 
appears  thereon  to  have  become  a  party  thereto  for  value, 
t  Consideration  —  Value  —  Pre-existing  Claim.]  ij  25. 
Value  is  any  consiilerutiuii  sutliri.nt  to  suppt>rt  a  simple 
contract. 

2.  An  antecedent  or  pre-existing  claim,  whether  for 
money  or  not,  constitutes  value  where  an  instrument  is 
taken  either  in  satisfaction  therefor  or  as  security  there- 
for and  is  deemed  such,  whether  the  instrument  is  payable 
on  dfMiiand  or  at  a  future  time. 

[Holder  for  Value.]  i<  26.  AVhere  value  has  at  any 
time  been  given  for  the  instrument,  the  holder  is  deemed 
a  holder  for  value  in  respect  to  all  parties  who  l)ecame 
such  prior  to  that  time. 

[Value  Presumed  to  Extent  of  Lien.)  ?5  27.  Whether 
the  holder  lias  a  lien  on  tiie  instrument  arising  either  from 
contact  or  by  implication  of  law.  he  is  deemed  a  holder  for 
value  to  the  extent  of  his  lien. 

[Absence  or  Failure  of  Consideration  as  Defense.)  ^5  28. 
Absence  or  failure  of  considei-ation  is  a  matter  of  defense 
as  against  any  person  not  a  holder  in  due  course,  and  par- 
tial failure  of  consideration  is  a  defense  pro  tanto,  whether 
the  failure  is  an  ascertained  and  liquidated  amount  or  oth- 
erwise. 

[Accommodation  Paper— Liabilities.]  §  20.  An  accom- 
modation party  is  one  who  lias  signed  the  instrument  as 
maker,  drawer,  acceptor,  or  indorser,  for  the  purpose  of 
lending  his  name  to  some  other  person.  Such  a  person  is 
liable  on  the  instrument  to  a  holder  for  value,  notwith- 
standing such  holder  at  the  time  of  taking  the  instrument 
knew  him  to  be  only  an  accommodation  party,  and  in  case 
a  transfer  after  maturity  was  intended   by  the  accommo- 


APPENDIX    D  401 

dating   party   notwithstanding   such    holder   acquired   title 
after  maturity. 

Article  III. — Negotiation. 

[Negotiation — How  Completed.)  §  30.  An  instrument 
is  negotiated  when  it  is  transferred  from  one  person  to  an- 
other in  such  manner  as  to  constitute  the  transferee  the 
holder  thereof;  if  payable  to  bearer,  it  is  negotiated  by 
delivery;  if  payable  to  order,  it  is  negotiated  by  the  in- 
dorsement of  the  holder,  completed  by  delivery. 

[Indorsement,  How  Made — Not  Negatived  by  Addi- 
tional Words.]  §  31,  The  iudorseiuent  must  be  written 
on  the  instrument  itself  or  upon  a  paper  attached  thereto. 
The  signature  of  the  indorser,  without  additional  words,  is 
a  sufficient  indorsement,  and  the  addition  of  words  of  as- 
signment or  of  guaranty  shall  not  negative  the  additional 
effect  of  the  signature  as  an  indorsement  unless  otherwise 
expressly  stfitcd. 

[Indorsement  Must  be  of  Entire  Instrument.]  §  32. 
The  indorsement  must  be  an  indorsement  of  the  entire  in- 
strument. An  indorsement  which  purports  to  transfer  to 
the  indorsee  a  part  only  of  the  amount  payable,  or  which 
purports  to  transfer  the  instrument  to  tAvo  or  more  in- 
dorsees severally,  does  not  oi)erate  as  a  negotiation  of  the 
instrument.  But  where  the  instrument  has  l)een  paid  in 
part,  it  may  be  indorsed  as  to  the  residue. 

[Indorsement  May  be  Blank,  Special  or  Restrictive.] 
§  33.  An  indorsement  may  Ijc  either  in  ])lank  or  special ; 
and  it  may  also  be  either  restrictive  or  qualified,  or  condi- 
tional. 

[Indorsement  in  Blank  Payable  to  Bearer.]  g  34.  A 
special  indorsement  specifies  the  person  to  whom  or  to 
whose  order  the  instrument  is  to  ])e  payable ;  and  the  in- 
dorsement of  such  indorsee  is  necessary  to  the  further 
negotiation  of  the  instrument.  An  indorsement  in  blank 
specifies  no  indorsee,  and  an  instrument  so  indorsed  is  pay- 
able to  bearer,  and  may  be  negotiated  by  delivery. 

[Holder  May  Convert  Blank  Indorsement  Into  Special.] 
§    35.     The  holder  may  convert  a  blank  indorsement  into  a 


•lOJ  IM    INKV's    IJAlt    KWMINVTKJN    Ui:VIK\V 

spcci.il  indurscmri'.t  l>y  writing'  nwv  tin-  sij^iiuturo  of  th«' 
indorscr  in  l»l;uiU  any  couttaft  cousistrnt  with  llic  diar- 
ai-ti'f  of  till-   iuilorsiiiH'tit. 

[Restrictive  Indorsement,  Elements  of.  c  :u\.  An  in- 
dorsement is  restrietive  which  eitlnr: 

1.  Pr(ihi))its  tile  furthrr  ne^'otiation  of  tht-  instrunient; 
or 

2.  Constitutes  the  indoi'si-f  tht-  a^'rnt  of  tin-  indors«'r;or 
',i.     Vests  tlie  title  in  the  indoisn*  in  trust  for  or  to  the 

use  of  some  other  person.  But  the  nnre  ahsence  of  words 
implying  power  to  negotiate  does  not  make  an  indorsement 
restrictive. 

[Tiights  Conferred  by  Restrictive  Indorsements.)  ><  37. 
A  resti'ictivf  iiuhtrsenicnt  confers  upon  tin-  imlorsee  the 
right: 

1.  To  rective  payment  of  the  instrument. 

2.  To  hrinpr  any  action  tiiereon  that  the  indorser  coidd 
bring. 

(2.  To  bring  any  action  thereon  that  the  indorser  coubi 
bring  or  acei-pt  in  the  case  of  a  restricti'.e  indorsement 
specified  in  secti(Ui  :><> — sub-section  2.  any  action  aLrainst  the 
indorser  or  any  ]»rioi-  pai'ty  that  a  special  indorsee  wouM 
be  entitled  to  bring.) 

3.  To  transfer  his  rights  as  sucli  indorsee,  where  the 
form  of  the  indorsement  authorizes  him  to  do  so. 

(3.  To  transfer  the  instrument  where  the  form  of  the 
indorsement  authorizes  him  to  do  so.) 

But  all  subsequent  imlorsees  acquire  only  the  title  of  the 
first  indorsee  under  the  restrietive  indorsement  specified  in 
section  3G — sub-section  1 — antl  as  against  the  principal  or 
cestui  que  trust  only  the  title  of  the  first  indorsee  under  the 
restrictive  indorsements  specified  in  section  3f) — sub-sec- 
tions 2  and  3  respectively. 

[Qualified  Indorsement  Does  Not  Impair  Negotiability.] 
§  38.  A  qualified  indorsement  constitutes  the  indorser  a 
mere  assignor  of  the  title  to  the  instrument.  It  may  be 
made  by  adding  to  the  indorser 's  signature  the  words 
''wnthout  recourse"  or  any  words  of  similar  import.     Such 


APPENDIX    D  403 

an  indorsement  does  not  impair  the  negotiable  character  of 
the  instrument. 
.  [Conditional  Indorsement  Obligatory  on  Indorsee.] 
§  39.  Where  an  indorsement  is  conditional,  a  party  re- 
quired to  pay  the  instrument  may  disregard  the  condition, 
and  make  a  payment  to  the  indorsee  or  his  transferee, 
whether  the  condition  has  been  fulfilled  or  not.  But  any 
person  to  whom  an  instrument  so  indorsed  is  negotiated, 
will  hold  the  same,  or  the  proceeds  thereof,  subject  to  the 
rights  of  the  person  indorsing  conditionally. 

I  Remote  Special  Indorser  Protected.]  §  40.  Where  an 
instrument  originally  payable  to  or  indorsed  specially  to 
bearer  is  subsequently  indorsed  specially  it  may  neverthe- 
less be  further  negotiated  by  delivery;  but  the  person  in- 
dorsing specially  is  liable  as  indorser  to  only  such  holders 
as  make  title  through  his  indorsement. 

(When  Payable  to  Several,  All  to  Indorse.]  §  41. 
Where  an  instrument  is  payable  to  the  order  of  two  or 
more  payees  or  indorsees  who  are  not  partners,  all  must 
indorse  unless  the  one  indorsing  has  authority  to  indorse 
for   thf^   others. 

[Paper  Drawn  to  Cashier  Deemed  Payable  to  His  Bank.] 
§  42.  Where  an  instrument  is  drawn  or  indorsed  to  a  per- 
son, as  "Cashier"  or  other  fiscal  officer  of  a  bank  or  cor- 
poration, it  is  deemed  prima  facie  to  be  payable  to  the  bank 
or  corporation  of  which  he  is  such  officer ;  and  may  be  nego- 
tiated by  either  the  indorsement  of  the  bank  or  corpora^ 
tion.  or  the   indorsement   of  the  officer. 

[Indorsement  by  Wrongly  Designated  Payee.]  §  43. 
Where  the  name  of  the  payee  or  indorsee  is  wrongly  desig- 
nated or  misspelled,  he  may  indorse  the  instrument  as  there- 
in described,  adding,  if  he  thinks  fit,  his  proper  signature. 

I  Indorsement  in  Representative  Capacity  May  Negative 
Personal  Liability.!  §  44.  Where  any  person  is  under 
obligation  to  indorse  in  a  representative  capacity,  he  may 
indorse  in  such  terms  as  to  negative  personal  liability. 

[Presumption  of  Negotiation  Before  Maturity.]  §  45. 
Except  where  an  indorsement  bears  date  after  the  matu- 


4U4  putney's  bAU  lxaminmiun  ickvikw 

rity  ol"  tlie  instnini<'nt,  cM-iy  iu*Koliatn.n  is  «1«mmii.mI  piiiiiti 
facie  to  have  Ix'tii  I'lTtM-tt'd  heforc  tin-  iiistrumrut  was  over- 
due. 

I  Presumptive  Identity  of  Place  of  Indorsement  With 
Date.l  sj  4(i.  Kxcej)!  wliere  the  contrary  apjx'urs.  every 
indorsement  is  piesuined  prima  facie  to  have  heen  made 
at  the  ])hice  where  the  instrument   is  tlatcd. 

I  Negotiability  Continues  Till  Discharge  by  Indorsement, 
Payment  or  Otherwise.  |  >;  47.  An  instrument  ne-^'otiablc 
in  its  orij^'in  continues  to  he  negotiahh'  until  it  has  heen  re- 
spectively indorsed  or  diseharK<'d  by  payment  <»r  other- 
wise. 

I  Owner  May  Strike  Out  Any  Indorsement — Subsequent 
Indorsers  Released.!  jj  4S.  The  owm-r  may  at  any  time 
strike  out  any  indorsement  whi<-h  is  not  necessary  to  his 
title.  The  indorser  whose  indorsement  is  struck  out,  and 
all  indorsers  suh.sequcnt  to  him,  aie  thereby  relieved  from 
liability  on  Il;e  iiist  iMitiient. 

[Transfer  Without  Indorsement — Title  Acquired.]  J<  40. 
Where  the  holder  of  an  instrument  payable  to  his  order 
transfers  it  I'oi-  value  without  iiuiorsiuf;  it,  the  transferer 
vests  in  the  ti-ansfcn-e  surh  title  as  the  transferei-  had 
therein,  and  the  transferee  ac(iuires,  in  addition,  the  rij^ht 
to  enforce  the  instrument  aprainst  one  who  signed  for  the 
accommodation  of  the  transferer  and  the  right  to  have  the 
indorsement  of  the  transferer  if  omitted  by  accident  or 
mistake.  But  for  the  purpose  of  determining  whether  the 
transferee  is  a  holder  in  due  course,  the  negotiation  takes 
effect  as  of  the  time  when  the  indoj-siMnent  is  actually  made. 

[Prior  Indorser  May  Acquire  and  Reissue  Paper,  But 
Can  Not  Enforce  Against  Intervening  Indorsers.  |  J^  50. 
Where  an  inslruintiit  is  neiiotiated  Imrk-  to  a  prior  party, 
such  party  may,  subject  to  the  provisions  of  this  act,  re- 
issue and  further  negotiate  the  same.  Init  he  is  not  entitled 
to  enforce  payment  thereof  against  any  intervening  party 
to  whom  he  was  personally  liable. 


APPENDIX    D 


405 


Article  IV.— Rights  of  the  Holder. 

[Holder  May  Sue  in  Own  Name.)  §  01.  The  holder  of 
a  negotiable  instrument  may  siu-  thereon  in  his  own  name 
and  payment  to  him  in  due  eourse  diseharges  the  instru- 
ment. 

[Holder  in  Due  Course  Defined.]  §  52.  A  holder  in 
due  course  is  a  holder  who  has  taken  the  instrument  under 
the  following   conditions: 

1.  That  it  is  complete  and  regular  upon  its  face; 

(1.     That  the  instrument  is  complete  and  regular  upon  its 
face.) 

2.  That  he  became  the  holder  of  it  before  it  was  over- 
due, and  without  notice  that  it  has  been  previously  dis- 
honored, if  such  was  the  fact. 

3.  That  he  took  it  in  good  faith  and  for  value. 

4.  That  at  the  time  it  was  negotiated  to  him  he  had  no 
notice  of  any  infirmity  in  the  instrument  or  defect  in  the 
title  of  tlic  person   nriiotialiii^'  it. 

[Demand  Paper  Must  be  Negotiated  Within  Reasonable 
Time  to  Confer  Rights.  1  S  53.  Where  an  instrument  pay- 
able on  demand  is  negotiated  an  unreasonable  length  of 
time  after  its  issue,  the  hohler  is  not  deemed  a  holder  in 
due  course. 

[Transferee  Receiving  Notice  of  Infirmity  After  Partial 
Payment  Protected  Only  Pro  Tanto.]  J5  54.  AVherc  the 
transferee  receives  notice  of  any  infirmity  in  the  instru- 
ment or  defect  in  the  title  of  the  person  negotiating  the 
same  before  he  has  paid  the  full  amount  agreed  to  be  paid 
therefor,  he  will  be  deemed  a  holder  in  due  course  only  to 
the  extent  of  the  amount  theretofore  paid  by  him. 

[Title  Defective  Through  Obtaining  Instrument  or  Sig- 
nature Through  Fraud  or  Duress.]  §  55.  The  title  of  a 
person  who  negotiates  an  instrument  is  defective  within 
the  meaning  of  this  act  when  he  obtained  the  instrument, 
or  any  signature  thereto,  by  fraud,  duress,  or  force  and 
fear,  or  other  unlawful  means,  or  for  an  illegal  considera- 
tion or  when  he  negotiates  it  in  breach  of  faith,  or  under 
such  circumstances  as  amount  to  a  fraud. 


406  prTNEv's  i»\u  j:\.\.minati(»v  ukvikw 

i  Notice  of  Infirmity— What  Constitutes.,  .:;  50.  T..  ,..11- 
stitut*'  iiiiti'i-  ol"  ail  iiiliiiiiity  in  tlu-  iiistrmiu-nt  or  iN-lrct 
in  tlic  title  of  tlic  ptTsnii  n.-j^'otiatint,'  tlif  same,  tin-  |>«Tson 
to  wlioni  It  is  iu'j,'otiati'il  ninst  liavr  IchI  artual  knowlt'iU't- 
of  tin-  intiiiiiity  or  defect,  or  knowledm"  of  sueh  facts  that 
his  action   in  taking'  the  instrnnicnt  anionntcd  to  had   laith. 

I  Rights  of  a  Holder  in  Due  Course.;  ji  'u.  A  hohh-r  in 
due  course  lioids  the  instrument  I'rce  from  any  defj-ct  of 
title  of  prior  parties,  and  free  from  defenses  availahh*  to 
prior  parties  amon^'  tliemselves  and  may  enf(»rce  payment 
of  the  in.strument  for  the  full  amount  tliereol'  aK'ainst  all 
parties  liahle  thereon  (exeept  the  defect  and  defense  speei- 
fied  in  section  10  of  aet  entitled  "An  act  to  revise  the  law 
in  relation  to  promissory  notes,  l)onds,  due  hills  and  other 
instruments  in  writing,"  approved  .March  IS,  1874,  in  force 
July  1,  1874,  and  exeept  the  ilefeet  and  defen.se  specified 
in  sections  l.'H  and  1M6  of  an  act  to  revise  the  law  in  rela- 
tion to  criminal  jurisprudence,  approved  .March  27,  1S74, 
in  force  duly  1,  1874,  known  as  sections  ]'M  and  i:}f5  of 
Chapter  .'5>S  of  the  KeviscMl  Statutes  of  Illinois,  and  may  en- 
force payment  of  the  instrument  for  the  full  amount  thereof 
against  all  parties  liable  thereon.) 

[Rights  of  a  Holder  Deriving  His  Title  Through  Holder 
in  Due  Course.  .^  .'>>.  In  the  hands  of  any  hohhr  other 
than  a  holder  in  due  course,  a  negotiable  instrument  is  sub- 
ject to  the  same  defenses  as  if  it  were  non-negotiable.  Uut 
the  holder  who  derives  his  title  through  a  holder  in  due 
course,  and  who  is  not  himself  a  party  to  any  fraud  or 
duress  or  illegality  affecting  the  instrument,  has  all  the 
rights  of  such  former  liolder  in  respect  to  all  parties  prior 
to  sueh  holder. 

[Presumption  in  Favor  of  Holder  in  Due  Course — Shift- 
ing Burden — Exception.]  §  59.  Every  holder  is  ilecmed 
prima  facie  to  be  a  holder  in  due  course;  but  when  it  is 
shown  that  the  title  of  any  person  who  has  negotiated  the 
instrument  was  defective,  the  burden  is  on  the  holder  to 
prove  that  he  or  some  person  under  whom  he  claims  ac- 
quired the  title  as  a  holder  in  due  course.     But  the  last 


APPENDIX    D  407 

mentioned  rule  does  not  apply  in  favor  of  a  party  who  be- 
came bound  on  the  instrument  prior  to  the  acquisition  of 
such  defective  title. 

Article  V. — Liabilities  of  Parties. 

[Engagements  of  Maker.]  §  60.  The  maker  of  a  ne- 
gotiable instrument  by  making  it  engages  that  he  will  pay 
it  according  to  its  tenor,  and  admits  the  existence  of  the 
payee  and  his  then  capacity  to  indorse. 

[Engagements  of  Drav^^er.]  §  61.  The  drawer  by 
drawing  the  instrument  admits  the  existence  of  the  payee 
and  his  then  capacity  to  indorse,  and  engages  that  on  due 
presentment  the  instrument  will  be  accepted  or  paid,  or 
both,  according  to  its  tenor,  and  that  if  it  be  dishonored, 
and  the  necessary  proceedings  on  dishonor  be  duly  taken, 
he  will  pay  the  amount  thereof  to  the  holder,  or  to  any 
indorser  who  may  be  compelled  to  pay  it.  But  the  drawer 
may  insert  in  the  instrument  an  express  stipulation  negativ- 
ing or  limiting  his  own  liability  to  the  holder. 

(Engagements  of  Acceptor.]  §  62.  The  acceptor  by 
accepting  the  instrument  engages  that  he  will  pay  it  ac- 
cording to  the  tenor  of  his  acceptance,  and  admits: 

1.  The  existence  of  the  drawer,  the  genuineness  of  his 
signature,  and  his  capacity  and  authority  to  draw  the  in- 
strument ;   and 

2.  The  existence  of  the  payee  and  his  then  capacity  to 
indorse. 

[Signing  Otherwise  Than  as  Maker,  Drawer  or  Acceptor 
Deemed  an  Indorsement  Unless  Restricted.  |  g  6:i.  A  per- 
son i)la('ing  liis  signature  upon  an  instrument  otherwise 
than  as  maker,  drawer  or  acceptor  is  deemed  to  be  an 
endorser,  unless  he  clearly  indicated  by  appropriate  words 
his  intention  to  be  bound  in  some  other  cajiaeity. 

[Liability  of  Indorser  in  Blank  Before  Delivering.] 
§  64.  AVhere  a  person,  not  otherwise  a  party  to  an  instru- 
ment, places  thereon  his  signature  in  blank  before  delivery, 
he  is  liable  as  indorser  in  accordance  with  the  following 
rules : 


408  putney's  uau  examination  hkvilw 

1.  If  the  iiistniment  is  payable  to  the  order  of  a  third 
per.soii,  he  is  liable  to  the  payee  and  to  all  subseqiieut 
parties. 

(1.  If  the  instrument  is  a  note  or  bill,  payable  to  the 
order  of  a  third  person  or  an  aeee])ted  bill,  ])ayable  to  the 
order  of  the  drawer,  he  is  liable  to  the  payee  and  to  all 
subsetjuent  parties.) 

2.  If  the  instrument  is  payable  to  the  order  of  the  maker 
or  drawer,  or  is  payable  to  bi-arer,  he  is  liable  to  all  parties 
subse<iuent  to  the  maker  or  ilrawer. 

(2.  If  the  instrument  is  a  note  or  unaecepted  bill  j>ay- 
able  to  the  order  of  the  maker  or  drawer,  or  is  payal>lf  to 
bearer,  he  is  lial)le  to  all  parties  subse(iucnt  to  the  maker 
or  drawer.) 

'•i.  If  he  si<^ns  for  tlie  accoiniiKMlat ion  of  the  payee,  hu 
is  liable  to  all  parties  subsefnient   t(»  the  payee. 

[Warranties  Imported  by  Negotiation  by  Delivery  or 
Qualified  Indorsement. j  §  (;.'>.  l-:\eiy  person  iie<,'otiatinjj: 
an  instiument  by  delivery  or  by  a  (pialilied  iridcirsement, 
W'arrants : 

1.  That  the  instrument  is  genuine  auel  in  all  respeets 
what  it  jiurports  to  be. 

2.  That  he  has  a  good  title  to  it. 

3.  That  all  prior  j)arties  had  eapaeity  to  contraet. 

4.  That  he  has  no  knowledije  of  any  fact  which  would 
impair  the  validity  of  the  instrument  or  render  it  valueless. 

(4.  That  he  has  no  knowledge  of  any  faet  which  would 
impair  the  validity  of  the  instrument.) 

But  when  the  negotiation  is  by  delivery  only,  the  war- 
ranty extends  in  favor  of  no  holder  other  than  the  im- 
mediate transferee. 

The  provisions  of  subdivision  three  of  this  section  do  not 
apply  to  persons  negotiating  public  or  corpoi-ate  securitie.s, 
other  than  bills  and  notes. 

[Warranties  of  All  Indorsers  Except  Accommodation  In- 
dorsers  wdth  Qualification.]  g  G(i.  Eveiy  indorser  not  an 
accommodating  party  who  indorses  without  qualification, 
warrants  to  all  subsequent  holders  in  due  course: 


APPENDIX    D  409 

1.  The  matters  and  things  mentioned  in  subdivision 
one,  two,  three  and  four  of  the  next  preceding  section ;  and 

2.  That  the  instrument  is  at  the  time  of  his  indorse- 
ment valid  and  subsisting. 

And,  in  addition,  every  indorser  engages  that  on  due 
presentment,  it  shall  be  accepted  or  paid,  or  both,  as  the 
case  may  be,  according  to  its  tenor,  and  that  if  it  be  dis- 
honored and  the  necessary  proceedings  on  dishonor  be  duly 
taken,  he  will  pay  the  amount  thereof  to  the  holder,  or  to 
any  subsequent  indorser  who  may  be  compelled  to  pay  it. 

[Indorsement  of  Instrument  Negotiable  by  Delivery.] 
§  (J7.  ^Vhere  a  person  ijlaces  his  indorsement  on  an  in- 
strument negotiable  by  delivery  he  incurs  all  the  liabilities 
of  an  indoi'ser. 

Ilndorsers  Liable  in  Order  of  Indorsements— Joint  and 
Several  Liability.  ^  68.  As  respects  on.-  anotlier,  in- 
dorsers  are  liable  prima  facie  in  the  order  in  which  they 
indorse;  but  evidence  is  admissible  to  show  that  as  between 
or  among  themselves  they  have  agreed  otherwise.  All 
parties  jointly  liable  on  a  negotiable  instrument  are  deemed 
to  bo  jointly  and  severally   li.-iM.-. 

[Liability  of  Broker  or  Agent  Negotiating  Instrument 
Without  Indorsement.)  §  69.  Where  a  ])roker  or  other 
agent  negotiated  an  instrument  without  in(lors(Mnent,  he 
incurs  all  the  liabilities  prescribed  by  section  sixty-five  of 
this  act,  unless  he  discloses  the  name  of  his  principal,  and 
the    fact   tluit    lie   is  acting  only   as   agent. 

[Measure  of  Damages  on  Protest  of  Bill  Drawn  or  In- 
dorsed Within  This  State  and  Payable  Without  the  State.) 
ij  G9a.  Whenever  any  bill  of  exchange  drawn  or  indorsed 
within  this  state  and  i)ayable  without  this  state  is  duly 
I)rotested  for  non-acceptance  or  non-payment,  the  drawer 
or  indorser  thereof,  due  notice  being  given  of  such  non- 
acceptance  or  non-payment,  shall  pay  such  bill  at  the  cur- 
rent rate  of  exchange  and  with  legal  interest  from  the  time 
such  bill  ought  to  have  been  paid  until  paid,  together  with 
the  costs  and  charges  of  protest,  and  on  l)i]ls  payable  in 
the  United  States  in  case  suit  has  to  be  brought  thereon 


410  putney's    HAlt    LXAMINATIOX    UEVIEW 

and   on    l)ill.s   payabU-    without    tlu-   rnited   States   with   or 
without  suit,  5%  (lanuiges  in  addition. 

Article  VI.— Presentment  for   Payment. 

[Presentment,  When  Necessary.]  §  70.  Presentment 
for  payment  is  Jiot  necessary  in  order  to  charge  the  per- 
son primarily  liable  on  the  instrument  exeept  in  case  of 
bank  notes;  but  if  the  instrument  is,  by  its  terms,  payable 
at  a  special  place  and  he  is  able  and  willing  to  pay  it  there 
at  maturity,  such  ability  and  willingness  are  etiuivalent  to 
a  tender  of  payment  upon  his  part.  But  exeept  as  herein 
otherwise  provided,  presentment  for  payment  is  necessary 
in  order  to  charge  the  drawer  ami  indorsers. 

[Time  off.  |  ><  71.  Where  the  instrument  is  not  pay- 
able on  demand,  presentment  must  be  made  on  the  day 
it  falls  due.  Where  it  is  i)ayable  on  demand,  presentment 
must  be  made  within  a  reasonable  time  after  its  issue,  ex- 
cept that  in  case  of  a  bill  of  exchange,  presentment  for 
payment  will  be  sufHcient  if  made  within  a  reasonable  time 
after  the  last  negotiation  thereof. 

(Elements  of  Sufficiency.]  ^  72.  Presentment  for  pay- 
ment, to  be  suflicient,   must  be  made: 

1.  By  the  holder,  or  by  some  person  authorized  to  re- 
ceive payment  on  his  behalf. 

2.  At  a  reasonable  hour  on  a  business  day. 

3.  At  a  proper  place  as  herein  defined. 

4.  To  the  person  primarily  liable  on  the  instrument,  or 
if  he  is  absent  or  inaccessible,  to  any  person  found  at  the 
place  where  the  presentment  is  made. 

[Requirements  as  to  Place.]  §  73.  Presentment  for  pay- 
ment is  made  at  the  proper  place : 

1.  "Where  a  place  of  payment  is  specified  in  the  instru- 
ment and  it  is  there  presented. 

2.  Where  no  place  of  payment  is  specified  and  the  ad- 
dress of  the  person  to  make  the  payment  is  given  in  the 
instrument  and  it  is  there  presented. 

3.  Where  no  place  of  payment  is  specified  and  no  ad- 
dress is  given  and  the  instrument  is  presented  at  the  usual 


APPENDIX    D  411 

place  of  business  or  resilience  of  the  person  to  make  pay- 
ment. 

4.  In  any  other  ease,  if  presented  to  the  person  to  make 
payment  wherever  he  can  be  found,  or  if  presented  at  his 
last  known  place  of  business  or  residence. 

L  Exhibition  of  Instrument  and  Delivery  to  Party  Pay- 
ing.] §  74.  The  instrument  must  be  exhibited  to  the  per- 
son from  whom  payment  is  demanded,  and  when  it  is  paid 
must  be  delivered  up  to  the  party  paying  it. 

[Instrument  Payable  at  Bank  Must  Be  Presented  During 
Banking  Hours — Exception.]  §  73.  ^Vll('l•e  tlic  instrument 
is  payable  at  a  bank,  presentment  for  payment  must  be 
made  during  banking  hours,  unless  the  person  to  make 
payment  has  no  funds  there  to  meet  it  at  any  time  during 
the  day,  in  which  case  presentment  at  any  hour  before  the 
l)ank  is  closed  on  that  diiy  is  sufificicnt. 

[To  Personal  Representative  of  Deceased  Maker  or  In- 
dorser.  |  ^  76.  Where  the  person  primarily  liable  on  the 
instrument  is  dead,  and  no  place  of  payment  is  specified, 
presentment  for  payment  must  be  made  to  his  personal 
representative  if  such  there  be,  and  if  with  exercise  of 
reasonable  dilijicncc,  he  can  ])e  found. 

[Presentment  for  Payment  to  Any  One  of  Several  Part- 
ners.! §  77.  AVhere  the  persons  primarily  liable  on  the 
instrument  are  liable  as  partners,  and  no  place  of  payment 
is  specified,  presentment  for  payment  may  be  made  to  any 
one  of  them,  even  though  there  has  been  a  dissolution  of 
the    fii'in. 

[Must  Be  Made  to  All  Persons  Primarily  Liable  Who 
Are  Not  Partners.]  ^  78.  AVhere  there  are  several  per- 
sons, not  partners,  primarily  liable  on  the  instrument,  and 
no  place  of  payment  is  specified,  presentment  must  be  made 
to  them  all. 

[  To  Drawee  for  Payment  Not  Required  to  Charge  Drawer 
Where  It  Would  Be  Unavailing.]  ^  70.  Presentment  for 
payment  is  not  required  in  order  to  charge  the  drawer 
Avhere  he  has  no  right  to  expect  or  require  that  the  drawee 
or  acceptor  will  pay  the  instrument. 


412  I»LTNi:v's    HAH    KXAMlNAIloN    IthVIKW 

I  Not  Required  to  Charge  Indorser  Upon  Paper  Made  for 
His  Accommodation. I  c;  >>(>.  rusriilni.iit  for  pas mciit  is 
nut  required  ti-  eliar^'e  iiti  iiitltd'ser  wliere  tlie  iustniiiicnt 
was   iiia.le  or  aerrjiled   for   lii>-   aieniiiinodation, 

[Delay  in  Making,  When  Excused. |  jj  M.  Delay  in 
maliinj^  presentment  for  payment  is  excused  when  the  de- 
lay is  caused  by  eii-euiiistanees  beyond  the  control  of  tho 
holder,  and  not  imputable  to  his  detault,  misconduct  or 
negligenee,  Wlieu  the  cause  of  delay  ceases  to  operate, 
presentment   must    be   made   with    reasonable   dilij,'ence. 

[When  Dispensed  With.|  ij  S2.  Presentment  for  pay- 
ment is  dispensed  Avith: 

1.  When  after  the  exercise  of  reasonable  diligence  pre- 
sentment as  required  by  tliis  act  cannot  be  made. 

2.  Where  the  drawee   is  a  fictitious  person. 

3.  By  waiver  of  presentment,  express  oi-  im|»lied. 
[Instrument    Dishonored    by    Non-payment    When.]       § 

83.     Tlie   instrument    is  dishonored    i)y    uou-paymeiit    when: 

1.  It  is  duly  presented  for  payment  and  payment  is  re- 
fused or  cannot  be  obtained ;  or 

2.  Presentment  is  excused  and  the  instrument  is  over- 
due and  unpaid. 

I  Immediate  Right  of  Recourse  Against  All  Parties  Sec- 
ondarily Liable  Accrues  to  Holder  Upon  Dishonor  by  Non- 
payment.] ^  84.  Subject  to  the  provisions  of  this  act, 
when  the  instrument  is  dishonored  by  non-payment,  an  im- 
mediate right  of  recourse  to  all  parties  secondarily  liable 
thereon  accrues  to  the  holder. 

[Time  of  Payment — No  Grace — Sundays  and  Holidays.] 
§  85.  Every  negotiable  instrument  is  payal)le  at  the  time 
fixed  therein  Avitbout  grace.  When  the  day  of  maturity 
falls  upon  Sunday,  or  a  holiday,  the  instrument  is  payable 
upon  the  next  succeeding  business  day.  Instruments  fall- 
ing due  on  Saturday  are  to  be  presented  for  ])ayment  on 
the  next  succeeding  business  day,  except  that  instruments 
payable  on  demand  may,  at  the  option  of  the  holder,  be 
presented  for  payment  before  12:00  o'clock  noon  on  Satur- 
day, when  that  entire  day  is  not  a  holiday. 


APPENDIX    D  413 

[Computation  of  Time.]  g  86.  Where  the  instrument 
IS  I)ayable  at  a  fixed  period  after  date,  after  sight,  or  after 
the  happening  of  a  specified  event,  the  time  of  payment 
]s  determined  by  excluding  the  day  from  ^^hich  the  time 
IS  to  begin  to  run,  and  by  including  the  date  of  payment. 

§  87.  Where  the  instrument  is  made  payable  at  a  bank, 
It  is  eciuivalent  to  an  order  to  the  bank  to  pay  the  same 
for  the  account  of  the  principal  debtor  thereon. 

[What  Is  Payment  Made  in  Due  Course.]  §  88.  Pay- 
ment is  made  in  due  course  ^^■\u■n  it  is  made  at  or  after 
maturity  of  the  instrument  to  the  liolder  thereof  in  good 
faith  and  without  notice  that  his  title  is  defective. 

Article  VII.— Notice  of  Dishonor, 
f  Notice  of  Dishonor  Must  Be  Given  Drawer  and  Each 
Indorser.J  g  8<J.  Except  as  herein  otlierwisc  i)rovided, 
when  a  negotiable  instrument  has  been  dishonored  by  non^ 
acceptance  or  non-payment,  notice  of  dishonor  must  be 
given  to  the  drawer  and  to  each  indorser,  and  any  drawer 
or  indorser  to  whom  such  notice  is  not  given  is  discharged 
[On  Whose  Behalf  Given.]  §  90.  The  notice  may  be 
given  by  or  on  behalf  of  the  holder,  or  by  or  on  behalf 
of  any  party  to  the  instrument  who  might  be  compelled 
to  pay  it  to  the  holder,  and  who,  upon  taking  it  up,  would 
have  a  right  to  reimbursement  from  the  party  to  whom 
the  notice  is  given. 

[Notice  May  Be  Given  by  Agent.]  §  91.  Notice  of  dis- 
honor  may  be  given  by  an  agent  either  in  his  own  name 
or  m  the  name  of  any  party  entitled  to  give  notice,  whether 
that  party  be  his  principal  or  not. 

[Notice  Given  by  Holder  Inures  for  Benefit  of  All  Prior 
Parties.  I  ^  92.  AVhere  notice  is  given  by  or  on  behalf 
of  the  holder,  it  inures  for  the  benefit  of"  all  subsequent 
holders  and  all  prior  parties  who  have  a  right  of  recourse 
against  the  party  to  whom  it  is  given. 

[Notice  Inures  for  Benefit  of  Holder  and  All  Parties  Sub- 
sequent.]  §  93.  Where  notice  is  given  by  or  on  behalf  of 
a  party  entitled  to  give  notice,  it  inures  for  the  benefit  of 


414  putney's    UAU    EXAMINATIUN    UEVIEW 

Ihr  lioldcr  and  all  paitios  siibsequoni  to  the  party  to  wliora 
notice'   is   ji:i\<'n. 

I  Instrument  Dishonored  in  Hands  of  Agent — Notice, 
How  Given.  I  j^  1)4.  WIumt  tin-  insirniiirnt  lias  hrcn  dis- 
honorod  in  tiic  hand.s  of  an  a^^'nt,  lit-  may  ritluT  hiiii.sclf 
give  notice  to  the  i)artit's  iiahU'  thereon,  (»r  he  may  give 
notice  to  hi.s  principal.  If  lie  gives  notice  to  hi.s  principal, 
lie  mu.st  do  so  within  the  same  time  as  if  he  were  the 
holder,  and  the  principal,  npon  the  receipt  of  such  notice, 
has  himself  the  same  time  for  giving  notice  as  if  the  agent 
had  been  an  inde])endent  holder. 

[Written  Notice  May  Be  Supplemented  by  Verbal  Com- 
munication.] ^  1).").  A  Wl-itteii  imtiee  need  Hot  he  si^Mled, 
and  an  insufMcient  wi'itten  iiotiec  may  l»e  snpplemented 
and  validated  by  verbal  eommiinieation.  A  misdescription 
of  the  instrument  does  not  vitiate  uidess  the  party  to  whom 
the  notice  is  given  is  in  fact  misled  Ilierel»y. 

I  Notice  May  Be  Written  or  Oral — Personally  or  Through 
Mail.]  sj  l)(i.  The  notice  may  be  in  writing  oi-  merely  oral 
and  maj'  be  given  in  any  terms  which  sutlficiently  iilentify 
the  instrument  and  indicate  that  it  has  been  dishonored 
by  non-acceptance  or  non-payment.  It  may  in  all  cases 
be  given  by  delivering  it  personally  or  through  the  mails. 

[Notice  of  Dishonor  May  Be  Given  to  Party  or  Agent.] 
§  97.  Notice  of  dishonor  may  be  given  either  to  the  party 
himself  or  to  his  agent  in  that  behalf. 

[Service  of  Notice  Upon  Personal  Representative  of  De- 
ceased Party.  I  v:j  i'S.  AVhcre  any  party  is  dead,  and  his 
death  is  known  to  the  party  giving  notice,  the  notice  must 
be  given  to  a  personal  representative,  if  there  be  one,  and 
if  with  reasonable  diligence  he  can  be  found.  If  there  be 
no  personal  representati\e.  notice  may  be  sent  to  the  last 
residence  or  last  place  of  business  of  the  deceased. 

[Notice  to  Any  One  of  Several  Partners  Sufficient.]  § 
99.  "Where  the  parties  to  be  notified  are  partners,  notice 
to  any  one  partner  is  notice  to  the  firm,  even  though  there 
has  been  a   dissolution. 

[Notice  to  Joint  Parties  Not  Partners  to  be  Given.) 
§    100.     Notice  to  joint  parties  who  are  not  partners  must 


APPENDIX    D  415 

be  given  to  each  of  tlicni,  unless  one  of  them  has  authority 
to  receive  sucli  notice  for  the  others. 

I  Notice  in  Case  of  Bankrupt  or  Insolvent.]  §  101. 
Where  a  partj'  has  been  adjudged  a  bankrupt  or  an  in- 
solvent, or  has  made  an  assignment  for  the  benefit  of  his 
creditors,  notice  may  be  given  either  to  the  party  himself 
or  to  his  trustee  or  assignee. 

[Time  of  Giving  Notice  of  Dishonor.]  §  102.  Notice 
may  be  given  as  soon  as  the  instrument  is  dishonored,  and 
unless  delay  is  excused  as  hereinafter  provided,  must  be 
given  within  the  times  fixed  by  this  act. 

[Times  Required  for  Notice  Where  Persons  Giving  and 
Receiving  Reside  in  Same  Place.]  §  U»;].  Wliere  the 
person  giving  and  the  person  to  receive  notice  reside  in 
same  place,  notice  must  be  given  within  the  following 
times : 

1.  If  given  at  the  place  of  business  of  the  person  to  re- 
ceive notice,  it  must  be  given  before  the  close  of  business 
hours  on  the  day  following. 

2.  If  given  at  his  residence,  it  must  be  given  before  the 
usual  hours  of  rest  on  the  day  following. 

3.  If  sent  by  mail,  it  must  be  be  deposited  in  the  post- 
office  in  time  to  reach  him  in  the  usual  course  on  the  day 
folioM'in.er. 

I  Times  for  Notice  Where  Persons  Gi\ing  and  Receiving 
Reside  in  Different  Places.  1  .:<  104.  AVliere  tlie  person 
giving  and  the  person  to  receive  notice  reside  in  different 
places,  the  notice  must  be  given  within  the  following 
times: 

1.  If  sent  by  mail,  it  must  be  deposited  in  the  post- 
office  in  time  to  go  by  mail  the  day  following  the  day  of 
dishonor,  or  if  there  be  no  mail  at  a  convenient  hour  on 
that  day,  by  the  next  mail  thereafter. 

2.  If  given  otherwise  than  through  the  postofifice,  then 
within  the  time  that  notice  would  have  been  received  in 
due  course  of  mail,  if  it  had  been  deposited  in  the  postoffice 
within  the  time  specified  in  the  last  sulnlivision. 

[Notice  Duly  Mailed  Deemed  Due  Notice  Notwithstand- 
ing  Miscarriage.]     §    105.    Where   notice   of   dishonor   is 


416  putney's  bah  examinatkjn  ukvikw 

duly  addressL'tl  and  di'positod  in  the  posluftice,  tlie  SL-udt-r 
is  deemed  to  have  given  due  notice,  notwithstanding  any 
niisearriagL'    in   tiic   mails. 

[Deposit  in  Letter  Box  Same  as  Postofiice.j  ^  lUU. 
Notice  is  deemed  to  have  been  dej)osited  in  the  postoffice 
when  deposited  in  any  branch  postoffice  or  in  any  letter 
box  under  the  eonti'ol  of  the  jxistoffiee  dej)ai-tment. 

I  Party  Receiving  Notice  Has  Same  Time  for  Notifying 
Antecedent  Parties.)  §  107.  Where  a  party  receives 
notice  of  dislionor,  he  has,  after  the  receipt  of  such  notice, 
the  same  time  for  giving  notice  to  antecedent  parties  that 
tlie  holder  has  after  dishonor. 

[Notice  Sent,  to  What  Address.]  §  ]08.  Where  a 
])arty  has  adih^d  an  address  to  his  signature,  notice  of  dis- 
honor must  be  sent  to  that  address;  but  if  he  has  not  given 
such  address,  then  the  notice  must  be  sent  as  follows: 

1.  Either  to  the  postoffice  nearest  to  his  place  of  resi- 
dence, or  to  the  postoffice  where  he  is  accustomed  to  re- 
ceive his  letters ;  or 

2.  If  he  lives  in  one  place,  and  has  his  place  of  busi- 
ness in  another,  notice  may  be  sent  to  either  place;  or 

8.  If  he  is  sojourning  in  another  place,  notice  may  be 
sent  to  the  place  where  he  is  sojourning. 

But  where  the  notice  is  actually  received  by  the  party 
within  the  time  specified  in  this  act,  it  will  be  sufficient, 
though  not  sent  in  accordance  with  the  requirements  of  this 
section. 

[Notice  May  be  Waived.]  §  109.  Notice  of  dishonor 
may  be  waived,  either  before  the  time  of  giving  notice  has 
arrived,  or  after  the  omission  to  give  due  notice,  and  the 
waiver  may  be  express  or  implied. 

[Waiver  Embodied  in  Instrument  Binding  on  All  Part- 
ies.] §  110.  Where  the  waiver  is  embodied  in  the  instru- 
ment itself,  it  is  binding  upon  all  parties :  but  where  it  is 
written  above  the  signature  of  an  indorser,  it  binds  him  only. 

[Waiver  of  Protest  Waives  Presentment  and  Notice  of 
Dishonor.]  §  111.  A  waiver  of  protest,  whether  in  the 
case  of  a  foreign  bill  of  exchange  or  other  negotiable  in- 


APPENDIX    D  417 

striiment,  is  deemed  to  be  a  waiver  not  only  of  a  formal 
protest,   but  also  of  a  presentment  and  notice  of  dishonor. 

i  Notice  of  Dishonor,  When  Dispensed  With.  J  §  112. 
Notice  of  dishonor  is  dispensed  with  when,  after  the  ex- 
ercise of  reasonable  diligence,  it  can  not  be  given  to  or  does 
not  reach  the  parties  sought  to  be  charged. 

I  Delay  in  Giving  Notice  of  Dishonor,  When  Excused.] 
§  113.  Delay  in  giving  notice  of  dishonor  is  excused 
when  the  delay  is  caused  bj'-  circumstances  beyond  the  con- 
trol of  the  holder  and  not  imputable  to  his  default,  mis- 
conduct or  negligence.  When  the  cause  of  delay  ceases  to 
operate,  notice  must  be  given  with  reasonable  diligence. 

[Notice  of  Dishonor,  When  Not  Required  to  Drawer.] 
§  114.  Notice  of  dishonor  is  not  re(piired  to  be  given  to 
the  drawer  in  either  of  the  following  cases : 

1.  Where  the  drawer  and  drawee  are  the  same  person. 

2.  W^here  the  drawee  is  a  fictitious  person  or  a  person 
not  having  capacity  to  contract. 

3.  Where  the  drawer  is  the  person  to  whom  the  instru- 
ment is  presented  for  payment. 

4.  AVhere  the  drawer  has  no  right  to  expect  or  require 
that  the  draw^ee  or  acceptor  will  honor  the  instrument. 

5.  Where   the   draAver  has   countermanded   payment. 
[Notice  of  Dishonor,  When  Not  Required  to  Indorser.] 

§  115.  Notice  of  dislionor  is  not  required  to  be  given  to 
an  indorser  in  either  of  the  f olloAving  cases : 

1.  Where  the  drawee  is  a  fictitious  person  or  a  person 
not  having  capacity  to  contract  and  the  indorser  was  aware 
of  the  fact  at  the  time  he  indorsed  the  instrument. 

2.  Where  the  indorser  is  the  person  to  whom  the  in- 
strument is  presented  for  payment. 

3.  Where  the  instrument  w^as  made  or  accepted  for  his 
accommodation. 

[Notice  of  Non-acceptance  Annuls  Necessity  for  Notice 
of  Subsequent  Non-payment.]  §  116.  AVhere  due  notice 
of  dishonor  by  non-acceptance  has  been  given,  notice  of  a 
subsequent  dishonor  by  non-payment  is  not  necessary,  un- 
less in  the  meantime  the  instrument  has  been  accepted. 


418  putney's  bar  kxaminatkjn  ulmkw 

I  Omission  of  Notice  for  Non-acceptance  Not  to  Preju- 
dice Holder  in  Due  Course  Subsequently.!  ,^  117.  Aii 
omission  to  give  notice  of  dishonor  by  uon-.iccL'ptuuce  does 
not  prejuclico  Ibe  rights  ol"  a  hohh-r  in  ihn-  course  subse- 
quent to  the  omission. 

I  Protest  Required  Only  in  Foreign  Bills.  |  .^i  11 S, 
AVhere  any  negotiable  instrument  lias  been  dishonored  it 
may  be  protested  for  non-aeeeptanee  or  non-payment  as 
the  ease  may  be;  but  protest  is  not  re(|uired,  except  in  the 
case  of  foreign  bills  of  exchange. 

Article   VIII. — Discharge   of   Negotiable   Instruments. 
I  How    Discharged.  I     §    11!).     A    negotiable     instrument 
is  discharged : 

1.  By  payment  in  due  course  by  or  on  behalf  of  the 
principal  debtor. 

2.  By  payment  in  due  course  by  the  party  accommo- 
dated, wiiere  the  instrument  is  made  or  accepted  foi-  ac- 
commodation. 

3.  By  the  intentional  cancellation  thereof  by  the  holder, 

4.  By  any  other  act  Avhieh  will  discharge  a  simple  con- 
tract for  the  payment  of  money. 

(4.  When  the  i)rincipal  debtor  becomes  the  holder  of 
the  instrument  at  or  after  maturity  in  his  own  right.) 

[How  Secondary  Liability  Discharged.]  §  120.  A  per- 
son secondarily  liable  on  the  instrument  is  discharged : 

1.  By  an  act  which  discharges  the  instrument. 

2.  By  the  intentional  cancellation  of  his  signature  by 
the  holder. 

3.  By  the  discharge  of  a  prior  party. 

(3.  By  a  valid  tender  of  payment  made  by  a  prior 
party.) 

4.  By  a  release  of  the  principal  debtor,  unless  the  hold- 
er's right  of  recourse  against  the  part  (party)  secondarily 
liable  is  expressly  reserved,  or  unless  the  principal  debtor 
be  an  accommodating  party. 

5.  By  a  release  of  the  principal  debtor,  unless  the  hold- 
er's right  of  recourse  against  the  party  secondarily  liable 
is  expressly  reserved. 


APPENDIX    D 


419 


(5.  By  an  agreement  in  favor  of  the  principal  debtor 
binding  upon  the  holder  to  extend  the  time  of  payment,  or 
to  postpone  the  holder's  right  to  enforce  the  instrument, 
unless  made  with  the  assent  prior  or  subsequent  of  the 
party  secondarily  liable,  or  unless  the  right  of  recourse 
against  such  party  is  expressly  reserved,  or  unless  the  prin- 
cipal debtor  be  an  accommodating  party.) 

6.  By  any  agreement  binding  upon  the  holder  to  extend 
the  time  of  payment,  or  to  postpone  the  holder's  right  to 
enforce  the  instrument,  unless  made  with  the  assent  of 
the  party  secondarily  liable,  or  unless  the  right  of  re- 
course against  such  party  is  expressly  reserved. 

[Rights  of  Party  Secondarily  Liable,  on  Paying.]  §  121. 
Where  the  instrument  is  paid  by  a  party  secondarily  liable 
thereon,  it  is  not  discharged;  but  the  party  so  paying  it  is 
remitted  to  his  former  rights  as  regards  all  prior  parties, 
and  he  may  strike  out  his  own  and  all  subsequent  indorse- 
ments, and  again  negotiate  the  instrument,  except: 

1.  Where  it  is  payable  to  the  order  of  a  third  person 
and  has  been  paid  by  the  drawer;  and 

2.  Where  it  was  made  or  accepted  for  accommodation, 
and  has  been  paid  by  the  pai'ty  accommodated. 

[Holder  May  Expressly  Renounce  His  Rights  Against 
Any  Party  to  the  Paper.]  §  122.  The  holder  may  ex- 
pressly renounce  his  rights  against  any  party  to  the  in- 
strument before,  at,  or  after  its  maturity.  An  absolute 
and  unconditional  renunciation  of  his  rights  against  the 
principal  debtor  made  at  or  after  the  maturity  of  the  in- 
strument, discharges  the  instrument.  But  a  renunciation 
does  not  affect  the  rights  of  a  holder  in  due  course  without 
notice.  A  renunciation  must  be  in  writing,  unless  the  in- 
strument is  delivered  up  to  the  person  primarily  liable 
thereon. 

[Unintentional  Cancellation  Inoperative — Burden  of 
Proof.]  §  123.  A  cancellation  made  unintentionally,  or 
under  a  mistake,  or  without  the  authority  of  the  holder,  is 
inoperative ;  but  where  an  instrument  or  any  signature 
thereon  appears  to   have  been   cancelled,    the    burden    of 


420  I'LTNKY's    U.Ut    hXAMl.NAlluN    UKMhW 

proof  lies  on  the  paity  who  aUeges  that  the  caneelhitiun 
was  made  uniutentioually,  or  un«lt.-r  a  mistake  or  without 
authority. 

[Material  or  Fraudulent  Alteration  of  Instrument.! 
§  124.  Where  a  uej^'otiahlc  instrunu-ut  is  frauiluleutly  or 
materially  alten-d  l>y  the  holder  without  the  assent  of  all 
the  parties  liable  tiiereon.  it  is  avoideil  except  as  a^jainst  a 
party  who  has  himself  mad.-,  autliuri/.ed  or  assented  to  th<' 
alteration    and   suhsecpient    indorsers. 

But  when  an  instrument  has  heen  materially  altered  and 
is  in  the  hands  of  a  holder  in  duf  eourse.  not  a  party  to 
the  alteration,  he  may  enforce  payment  then-of  according; 
to  its  orijjinal  tenor. 

I  What  Are  Material  Alterations.)  >•  12.">.  Any  altera- 
tion which  changes: 

1.  The   date. 

2.  The  sum  payable,  either  for  principal  or  interest. 

3.  The  time  or  place  of  payment. 

4.  The    number   and    the    relations   of   the    jiarties. 

f).     The  medium  t)r  currency   in  which   payment   is  to  be 

made. 

Or  which  atlds  a  place  of  payment  where  no  place  of 
payment  is  specified,  or  any  otlic--  eluuiLre  or  addition  which 
alters  the  effect  of  the  instrument  in  any  respect,  is  a  ma- 
terial alteration. 

TITLE  11.— iULLS  OF  KXC'ITAXOE. 
Article  I.— Form  and  Interpretation. 

[Bill  of  Exchange  Defined.]  j$  12(i.  A  bill  of  exchange 
is  an  unconditional  order  in  writing  addressed  by  one  per- 
son to  another,  signed  by  the  person  giving  it,  requiring 
the  person  to  whom  it  is  addressed  to  pay  on  demand,  or 
at  a  fixed  or  determinable  future  time,  a  sum  certain  in 
money  to  order  or  to  bearer. 

[No  Assignment  of  Funds  Until  Acceptance.]  ^^  127. 
A  bill  (»f  itself  does  not  operate  as  an  assignment  of  the 
funds  in  the  hands  of  the  drawee  available  for  the  payment 


APPENDIX    U  421 

tlicrt'of,  and  the  drciwoe  is  not   liahlc  on  the  hill  uiih'ss  jiihI 
until  he  aeee]»ts  the  same. 

[May  be  Addressed  to  Several  Drawees  Jointly,  But  Not 
in  the  Alternative.]  §  128.  A  hill  may  he  addressed  to 
two  or  more  drawees  jointly,  whether  they  are  partners  or 
not;  but  not  to  two  or  more  drawees  in  the  alternative  or  in 
succession. 

[Inland  and  Foreign  Bills.]  §  129.  An  inland  bill  of 
exchange  is  a  bill  which  is,  or  on  its  face  purports  to  be, 
hotli  drawn  and  payable  within  this  state.  Any  other  bill 
is  a  foreign  bill.  Unless  the  contrary  appears  on  the  face 
of  the  bill,  the  holder  may  treat  it  as  an  inland  bill. 

[May  be  Treated  at  Option  as  a  Bill  or  Note.]  §  130. 
Where  in  a  bill  drawer  and  drawee  are  the  same  person, 
or  where  the  drawee  is  a  fictitious  person,  or  a  person  not 
having  capacity  to  contract,  the  holder  may  treat  the  in- 
strument at  his  option,  either  as  a  bill  of  exchange  or  a 
promissory  note. 

[Referee  in  Case  of  Need.]  §  131.  The  drawer  of  a 
l)ill  and  any  indorser  may  insert  thereon  the  name  of  a 
person  to  wdiom  the  holder  may  resort  in  case  of  need,  that 
is  to  say,  in  case  the  bill  is  dishonored  by  non-acceptance 
on  non-payment.  Such  person  is  called  the  referee  in  case 
of  need.  It  is  the  option  of  the  holder  to  resort  to  the 
referee  in  case  of  need,  or  not,  as  he  may  see  fit. 

Article  II. — Acceptance. 

[Acceptance  Must  be  in  Writing  and  Unconditional.] 
§  132.  The  acceptance  of  a  bill  is  the  signification  by  the 
drawee  of  his  assent  to  the  order  of  the  drawer.  The  ac- 
ceptance must  be  in  writing  and  signed  by  the  drawee. 
It  must  not  express  that  the  drawee  will  perform  his  prom- 
ise by  any  other  means  than  the  payment  of  money. 

[Holder  May  Require  Acceptance  Written  on  Bill.] 
§  133.  The  holder  of  a  bill  presenting  the  same  for  ac- 
ceptance may  require  that  the  acceptance  be  written  on  the 
bill,  and  if  such  request  is  refused  may  treat  the  bill  as  dis- 
honored. 


422  I'LTNEV'S    HAU    KXA.VUNATluN    IthVlLW 

I  Effect    of    Acceptance    on    Separate     Paper,]     j<    134. 

Where  an  ai-iridaurr  is  writlni  mi  :i  i..i|mi-  utli«T  than  the 
bill  itself,  it  does  not  Itind  tin-  .Kr.ptor  rxci-pt  in  favor  of 
a  person  wiio,  on  tlie  faitli  tli.r.-of,  receives  the  1)111  f<»r 
value. 

[Effect  of  Promise  in  Writing  to  Accept  a  Bill.)  §  135. 
An  unconditional  i)r(.iiiisc  in  writing  to  a.-.cpt  a  l»ill  be- 
fore or  after  it  is  drawn  is  deemed  an  actual  acceptance  in 
favor  of  every  person  who.  upon  the  faith  thereof,  receives 
the  bill  for  value. 

I  Twenty-four  Hours  Allowed  for  Decision  as  to  Accept- 
ance.] s<  i;;<i.  The  drawee  is  allowed  twenty-four  hours 
after  presentment  in  whieli  to  decide  whether  or  not  he 
will  accept  the  bill;  i)Ut  the  ;i<'eeptanet>.  if  ^'iven.  dates  as 
the  day  of  i)resentation. 

I  When  Bill  May  be  Accepted.]  ^  i:}7.  A  ])ill  may  be 
accepted  before  it  has  been  sij;ned  by  the  drawer,  or  while 
otherwi.se  incomplete,  or  when  it  is  overdue,  or  after  it  has 
been  dishonored  by  a  i)revious  refusal  to  accept,  or  by  non- 
payment. 

[Acceptance  After  Dishonor  Reinstates  Original  Date.) 
§  188.  liut  when  a  lull  i»;iyal)le  after  si^'ht  is  dishonored 
by  non-acceptance  and  the  drawee  sul)se(|uently  acce|)ts  it, 
the  holder,  in  the  absence  of  any  ditVerent  agreement,  is 
entitled  to  have  the  bill  payable  accepted  as  of  the  date  of 
the  first  presentment. 

[General  and  Qualified  Acceptance.]  ?$  130.  An  ae- 
ceptance  is  either  ^^eneral  or  qualitied.  A  general  accept- 
ance assents  without  qualification  to  the  order  of  the 
drawer.  A  qualified  acceptance  in  express  terms  varies  the 
eifect  of  the  bill  as  drawn. 

[Acceptance  to  Pay  at  Particular  Place. |  §  140.  An 
acceptance  to  pay  at  a  particular  place  is  a  general  ac- 
ceptance unless  it  expressly  states  that  the  bill  is  to  be 
paid  there  only,  and  not  elsewhere. 

[Qualified  Acceptance  Characterized.!  ^  141.  An  ac- 
ceptance is  qualified  which  is: 

1.     Conditional;   that   is  to   say,    w-hich   makes  payment 


APPENDIX    D  423 

by  the  acceptor  dependent  on  the  fulfillment  of  a  condition 
therein  stated. 

2.  Partial;   that   is  to   say,   an   acceptance  to   pay   part 
only  of  the  amount  for  which  tlie   l)ill  is  drawn. 

3.  Local;  that  is  to  say,  an  acceptance  to  pay  only  at 
a  particular  place. 

4.  Qualified  as  to  time. 

5.  The  acceptance  of  some  one  or  more  of  the  drawees, 

but  not  of  all. 

[  Qualified  Acceptance  May  be  Refused— Effect  if  Taken.  1 
§  142.  The  holder  may  refuse  to  take  a  qualified  accept- 
ance, and  if  he  does  not  obtain  an  unqualified  acceptance, 
he  may  treat  the  bill  as  dishonored  by  non-acceptance. 
AVhere  a  qualified  acceptance  is  taken,  the  drawer  and  in- 
dorsers  are  discharged  from  liai)ility  on  the  bill,  unless  they 
have  expressly  or  impliedly  authorized  the  holder  to  take 
a  qualified  acceptance,  or  subsequently  assent  thereto. 
When  the  drawer  or  indorser  receives  notice  of  a  qualified 
acceptance,  he  must  within  a  reasonable  time  express  his 
dissent  to  the  holder,  or  he  will  be  deemed  to  have  as- 
sented thereto. 

Article  III.— Presentment  for  Acceptance. 
[When      Presentment     Required.)      i;    143.     Presentment 
for  acceptance  must  be  made : 

1.  AVhere  the  bill  is  payable  after  sight,  or  in  any  other 
ease  where  presentment  for  acceptance  is  necessary  in 
order  to  fix  the  maturity  of  the  instrument;  or 

2.  AVhere  the  bill  expressly  stipulates  that  it  shall  be 
presented  for  acceptance;  or 

3.  AVhere  the  bill  is  drawn  payable  elsewhere  than  at 
the  residence   or  place   of  business  of  the  drawee. 

In  no  other  case  is  presentment  for  acceptance  necessary 
in  order  to  render  any  party  to  the  hill  liable. 

[Must  be  Presented  or  Negotiated  Within  Reasonable 
Time.]  §  144.  Except  as  herein  otherwise  provided,  the 
holder  of  a  bill  which  is  required  by  the  next  preceding 
section  to  be  presented  for  acceptance  must  either  present 


424  l^UTNLV'.S    UAU    LXAMIN.MION    KL\  IKW 

it  lor  acceptance  or  nej^otiate  it  witliin  a  icasoiiahit'  time. 
If  he  fails  to  do  so,  the  tlraucr  and  ail  iiulorscrs  arc  tlis- 
charf^ed. 

[When,  How  and  Upon  Whom  Presentment  for  Accept- 
ance to  be  Made.  I  jj  14.'>.  Presentment  for  acceptance 
must  l)e  nuule  by  or  on  behalf  of  the  holder  at  a  rcasonal)le 
hour,  on  a  business  day,  and  before  the  bill  is  ovenlue,  to 
the  drawee  or  some  ])crson  authorized  to  accept  or  refuse 
acceptance  on  his  l)ehalf;  and: 

1.  Where  a  bill  is  addressed  to  two  or  more  drawees 
who  ai'c  not  partnci-s,  picsentmeiit  nuist  l)e  made  to  them 
all,  unless  one  has  authority  to  accept  t)r  i-efusc  accept- 
ance for  all,  in  which  case  presentment  may  be  nuule  to 
him  only. 

2.  Where  the  drawee  is  dead.  pi-esentim*nt  may  be  made 
to   his  j)ersonal   representative. 

3.  "Where  the  drawee  has  been  ad.jud»,'ed  a  bankrupt  <»r 
an  insolvent,  or  has  made  an  assignment  for  the  benefit  of 
creditors,  presentment  may  be  made  to  him  or  to  his  trus- 
tee or  assignee. 

[When  Presentment  to  be  Made. |  ij  140.  A  bill  nuiv 
l)c  presented  for  acceptance  on  any  day  on  which  nefjo- 
tiable  instruments  may  be  presented  for  payment  under 
the  provisions  of  sections  seventy-tw^o  and  eighty-five  of 
this  aet.  AVhen  Saturday  is  not  otherwise  a  holiday,  pre- 
sentment for  acceptance  may  be  made  before  twelve 
o'clock  noon  on  that  day. 

[When  Delay  is  Excused. [  ^  147.  AVhere  the  holder 
of  a  bill  drawn  payable  elsewhere  than  at  the  place  of  busi- 
ness or  residence  of  the  draw^ee  has  not  time,  with  the  ex- 
ercise of  reasonable  diligence,  to  present  the  bill  for  ac- 
ceptance before  presenting  it  for  payment  on  the  day  that 
it  falls  due,  the  delay  caused  by  presenting  the  bill  for  ac- 
ceptance before  presenting  it  for  payment  is  excused  and 
does  not  discharge  the  drawers  and  indorsers. 

[When  Presentment  is  Excused.]  §  148.  Presentment 
for  acceptance  is  excused  and  a  bill  may  be  treated  as  dis- 
honored by  non-acceptance  in  either  of  the  following  cases: 

1.     AVhere  the  drawee  is  dead,  or  has  absconded,  or  is  a 


APPENDIX    D  -120 

fictitious  person  or  a  person  not  having  capacity  to  con- 
tract by  bill. 

2.  Where,  after  the  exercise  of  reasonable  diligence, 
presentment  cannot  be  made. 

3.  Where,  although  presentment  has  been  irregular,  ac- 
ceptance has  been  refused  on  some  ground. 

I  When  a  Bill  is  Dishonored  by  Non-acceptance.]  §  149. 
A  bill  is  dishonored  by  non-acceptance : 

1.  AVhen  it  is  duly  presented  for  acceptance  as  is  pre- 
scribed by  this  act  is  refused  or  cannot  be  obtained;  or 

2.  When  a  presentment  for  acceptance  is  excused  and 
the  bill  is  not  accepted. 

I  Dilatory  Presentment  Renders  Bill  Dishonored  for  Non- 
Acceptance.]  §  150.  Where  a  bill  is  duly  presented  for 
acceptance  and  is  not  presented  within  the  prescribed 
time,  the  person  presenting  it  must  treat  the  bill  as  dis- 
honored by  non-acceptance,  or  he  loses  the  right  of  re- 
course against  the  drinver  and  indorsers. 

I  Dishonor  by  Non-acceptance  Renders  Presentment  for 
Payment  Unnecessary.]  ^  151.  When  a  bill  is  dishon- 
ored by  non-acceptance,  an  immediate  right  of  recourse 
against  the  drawers  and  indorsers  accrues  to  the  holders, 
and  no  presentment  for  payment  is  necessary. 

Article  IV. — Protest. 

[Protest  of  Foreign  Bill.]  ij  152.  Where  a  foreign  bill 
appearing  on  its  face  to  be  such  is  dishonored  by  non-ac- 
ceptance, it  must  be  duly  protested  for  non-acceptance, 
and  where  such  a  bill  which  has  not  previously  been  dis- 
honored by  non-acceptance  is  dishonored  by  non-payment, 
it  must  be  duly  protested  for  non-payment.  If  it  is  not  so 
protested,  the  drawer  and  indorsers  are  discharged.  Where 
a  bill  does  not  appear  on  its  face  to  be  a  foreign  bill,  protest 
thereof,  in  case  of  dishonor,  is  unnecessary, 

[Specifications  of  Protest.]  §  153.  The  protest  must 
be  annexed  to  the  bill  or  must  contain  a  copy  thereof,  and 
must  be  under  the  hand  and  seal  of  the  notary  making  it 
and  must  specify : 

1.     The  time  and  place  of  presentment. 


41,'t)  rUTNEY'tJ    15AU    tX AMI-NATION    UtViLW 

2.  The  fact  tlial  inesentineut  was  made  ami  the  mauuer 
thereof. 

'>i.     The  cause  or  reason  for  protesting  the  hill. 

4.  The  demand  made  and  the  answer  given,  if  any.  of 
the  fact  tiiat  the  drawf.-  or  acceptor  could  not  l>e  found, 

I  By  Whom  Protest  Made.  |  Jj  l.')4.  Protest  may  bo 
matle :    l)y 

1.  A  notary  public;  or 

2.  IJy  any  respectable  resident  of  the  place  wlu're  the 
bill  is  dishonored,  in  the  pres«'nce  of  two  or  more  (-redible 
witnesses. 

[When  Protest  to  be  Made.)  j;  1.').').  ^Vhen  a  bill  is 
pr-otcstcd,  sutli  protest  must  be  made  on  the  day  of  its  dis- 
honor, unless  delay  is  ext'used  as  heifiii  |»r(>\ided.  When 
a  bill  has  been  duly  noted,  tlie  protest  may  be  subsequently 
extendcii   as  of  the  (late  of  the   noting. 

I  Where  Protest  to  be  Made.  );  I'jG.  A  l»ill  uuist  be 
protested  at  the  place  where  it  is  dishonored,  I'Xcept  that 
when  a  l)ill  drawn  payable  at  the  place  of  i)usiness  or  resi- 
dence of  some  person  other  than  the  drawee,  lias  been  di.s- 
honored  by  non-acceptance,  it  nnist  l)e  protested  for  non- 
payment at  the  place  wliere  it  is  expressed  to  be  payable; 
and  no  other  presentment  for  payment  to,  or  demand  on, 
the  drawee  is  neccssai'V. 

[Subsequent  Protest  for  Non-Payment  May  be  Made.] 
§  l;")?.  A  bill  which  bas  been  i)rotesti'd  for  non-aeccpt- 
ance  may  be  subsecjucntly  protested  foi-  non-payment. 

I  Protest  May  be  Had  in  Cases  of  Bankrupts  or  In- 
solvents.] i^  ir)S.  AVhen  the  acceptor  li;is  brni  adjudged 
a  baiil^rupt  or  an  insolvent  or  has  made  an  assignment  for 
the  benefit  of  creditors,  before  the  bill  matur(>s.  the  holder 
may  cause  the  bill  to  be  protested  for  better  security  against 
the  drawer  and  indorsers. 

[When  Protest  May  be  Dispensed  With  or  Delay  Ex- 
cused.] J;  159.  Protest  is  dispensed  with  by  any  circum- 
stances which  would  dispense  with  notice  of  dishonor.  De- 
lay in  noting  or  protesting  is  excused  when  delay  is  caused 
by  circumstances  beyond  the  control  of  the  holder  and  not 


APPENDIX    D  427 

imputable  to  his  default,  misconduct  or  negligence.  When 
the  cause  of  delay  ceases  to  operate,  the  bill  must  be  noted 
or  protested  with  reasonable  diligence. 

[Protest  on  Copy  of  Lost  Bill.]  J<  160.  AVhere  a  bill  is 
lost  or  destroyed  or  is  wrongly  detained  from  the  person 
entitled  to  hold  it,  protest  may  be  made  on  a  copy  or  writ- 
ten particulars  thereof. 

Article  V. — Acceptance  for  Honor. 

[Acceptance  by  Third  Party  for  Honor.]  ><  161.  Where 
a  bill  of  exchange  has  been  protested  for  dishonor  by  non- 
acceptance,  or  protested  for  better  security,  and  is  not  over- 
due, any  person  not  being  a  party  already  liable  thereon, 
may,  with  the  consent  of  the  holder,  intervene  and  accept 
the  bill  supra  protest  for  the  honor  of  any  party  liable 
thereon  or  for  the  honor  of  the  person  for  whose  account 
the  bill  is  drawn.  The  acceptance  for  honor  may  be  for 
part  only  of  the  sum  for  which  the  bill  is  drawn,  and 
where  there  has  been  an  acceptance  for  honor  for  one  party 
there  may  be  a  further  acceptance  by  a  different  person  for 
the  honor  of  another  party. 

[Acceptance  for  Honor  Must  be  in  Writing.]  §  162. 
An  aeee})tance  for  honor  supra  protest  must  be  in  writing 
and  indicate  that  it  is  an  acceptance  for  honor,  and  must 
be  signed  by  the  acceptor  for  honor. 

[Deemed  for  Honor  of  Drawer  When  Not  Expressed.] 
§  l().'i.  A\'here  an  aceei)tanee  for  honor  does  not  expi-essly 
state  for  whose  honor  it  was  made,  it  is  deemed  to  ])e  an 
acceptance  for  the  lionor  of  the  drawer. 

[To  Whom  Acceptor  for  Honor  Liable.]  §  164.  The 
acceptor  for  honor  is  liable  to  the  holder  and  to  all  parties 
to  the  bill  subsequent  to  the  party  for  whose  honor  he  has 
accepted. 

[Engagements  of  Acceptor  for  Honor,]  §  165.  The 
acceptor  for  honor  by  such  acceptance  engages  that  he 
will,  on  due  presentment,  pay  the  bill  according  to  the 
terms  of  his  acceptance,  provided  it  .shall  not  have  been 
paid  by  the  drawee,  and  provided  also  that  it  shall  have 


42,S  ITTNKY's    UMl    KWMINATKJN'    UKVIF.W 

Ik'.ii   (Inly   i»i.sriilr.l    Inr   pii yiiuiit    aiul    protest. •.[    t..r   uuii- 
payirKiit  aihl   iiotii-c  of  (lisiioii.tr  i;i\fn  t<»  liini. 

I  Acceptance  for  Honor  Dates  From  Non-acceptance.  | 
j<  \[>{).  W'lifii  a  liill  payalilf  att.-r  siK'it  '-^  a«-f.-|.t.Ml  lor 
honor,  its  maturity  is  calrulatrtl  Ironi  the  <ljilf  of  the  not- 
ing for  non-acc't'ptanrr  .iml  not  from  thr  tlat.-  oi  the  ac- 
ceptance foi-  honor. 

I  Bill  Accepted  for  Honor  Must  be  Protested  for  Non- 
payment, etc!  .^  hn.  Wlicre  a  dishonored  hill  has  been 
accepted  for  honor  supra  protest  or  contains  a  reference  in 
case  of  need,  it  must  l>e  prote.steil  for  non-payment  liefore 
it  is  presented  for  payment  to  the  acceptor  for  honor  or 
referee  in  ea.s«'  (»f  need. 

[Presentment  for  Payment  to  Acceptor  for  Honor,  How 
Made.]  ^  lti>.  rrrsmtmcnt  for  payment  to  tlie  aci-eptor 
for  honor  must   \u-  mad«'  as  foUows: 

1.  If  it  is  to  h(  presented  in  tlu'  phu-e  where  the  protest 
for  non-paymerd  was  ma(h\  it  must  he  presented  not  hiter 
than   the   day    lollowinir    its   maturity. 

2.  If  it  is  to  he  presented  in  some  other  place  tlmn  tl»e 
place  wluM-e  it  was  protested,  then  it  must  he  forwarde<l 
within  the  time  specilied  in  section  lOM. 

[Delay  in  Making  Presentment  to  Acceptor  for  Honor.] 
§  1G9.  The  provisions  of  section  M  api)ly  where  there  is 
delay  in  making  presentment  to  the  acceptor  for  honor  or 
referee  in  case  of  need. 

[Protest  for  Non-payment  by  Acceptor  for  Honor.] 
§  170.  AVhen  the  hill  is  dishonored  hy  the  acceptor  for 
honor  it  must  he  protested  for  non-payment  hy  him. 

Article  VI.— Payment  for  Honor. 

[Any  Person  May  Pay  Supra  Protest  for  Honor.]  ^  171. 
AYhere  a  hill  has  been  accepted  for  non-payment,  any  per- 
son may  intervene  and  pay  it  snpra  protest  for  the  honor 
of  any  person  liable  thereon  or  for  the  honor  of  the  per- 
son for  wi'.os(>  account  it  was  drawn. 

[Must  be  Attested  by  Notarial  Act  of  Honor.]  §  172. 
The  payment  for  honor  supra  protest  in  order  to  operate 


APPENDIX    D  42<J 

as  such  and  not  as  a  mere  voluntary  payment  must  be  at- 
tested by  a  notarial  act  of  honor  which  may  be  appended 
to  tlie  protest  or  furni  an  exirnsion  tu  it. 

[Payer  Must  Declare  Intention,  and  for  Whose  Honor.] 
§  173.  The  notarial  act  of  honor  must  be  founded  on  a 
declaration  made  by  the  payer  for  honor  or  by  his  agent 
in  tliat  behalf  declaring  his  intention  to  pay  the  bill  for 
honor  and  for  whose  honor  he  pays. 

[Preference  Among  Persons  Offering  to  Pay  for  Honor.] 
,^  1/4.  Where  two  or  muic  i>ersuus  uft't^-  to  i)ay  a  bill  for 
the  honor  of  different  parties,  the  person  whose  payment 
will  discharge  most  parties  to  the  bill  is  to  be  given  the 
preference. 

I  Discharge  of  Parties  Subsequent  to  Party  for  Whose 
Honor  Paid.]  §  175.  Where  a  bill  has  been  paid  for 
huuor,  all  parties  subsequent  to  the  party  for  who.se  honor 
it  is  paid  are  discharged,  but  the  payer  for  honor  is  sub- 
rogated for,  and  succeeds  to,  both  the  rights  and  duties 
of  the  holder  as  regards  the  party  for  whose  honor  he  pays 
and  all  parties  liable  to  the  latter. 

[Effect  of  Holder  Refusing  to  Receive  Payment  Supra 
Protest.]  §  17ti.  Where  the  holder  of  a  bill  refuses  to 
receive  payment  .supra  protest,  he  loses  his  right  of  re- 
course against  any  party  who  would  have  been  discharged 
by  such  ])ayiiicnt. 

[Payer  for  Honor  Entitled  to  Receive  Bill  and  Protest.] 
§  177.  The  payer  for  honor,  on  paying  to  the  holder  the 
amount  of  the  bill  and  the  notarial  expenses  incidental  to 
its  dishonor,  is  entitled  to  receive  both  the  bill  itself  and 
the  protest. 

Article  VII.— Bills  in  a  Set. 

[The  whole  of  the  Parts  of  a  Bill  Drawn  in  a  Set  Con- 
stitute One  Bill.]  ^  178.  AVhere  a  bill  is  drawn  in  a  set, 
each  part  of  the  set  being  numbered  and  containing  a  ref- 
erence to  other  parts,  the  wliole  of  the  parts  constitute 
one  bill. 

[Parts  of  Set  Negotiated  to  Different  Holders— True 
Owner.  1      ;j    170.     AVhere  tM'o  oi-  more  parts  of  a  set  are 


43U  I'UTNEY  a'    MAIC    hXAMINATlO.N    UhMKW 

iit'jifotialfil  to  dift'eit'iit  IioKUts  in  iluf  cour.sf,  tla*  IioIiUt 
\vlius«'  lille  first  aeeruf.s  is,  as  hetween  such  holilers,  the 
true  owner  of  the  l)iil.  lint  iiotliiii};  in  this  section  iitTeets 
the  lij^hts  ot  a  ptison  who  in  ilm-  eourse  a»M«'|)ts  or  pays 
the   part   lirst   presented   ti»  him. 

;  Holder  Indorsing  More  Than  One  Part  Liable  on  All 
Such.,  .::;  l.^U.  WJific  thi-  iiul(h'r  <»!'  a  stt  iiKJursfs  two 
o!"  nioi'e  parts  to  dilVerent  i)ersons  he  is  lialih-  on  every 
sir  li  j)ait,  ami  every  indorser  siil)S(M|urnt  to  him  is  liahlo 
on  the  part  lie  has  himself  in<lorseil,  as  if  sueh  parts  were 
separate   hills. 

[Acceptance  on  More  Than  One  Part. i  i5  1>^1.  The 
aet'i'ptance  may  he  wiilt«n  un  any  pai't  and  it  must  l)e 
wi'itten  on  one  pai't  ()n\y.  W  the  drawee  accepts  mme  tlian 
one  pai't.  and  siiih  accepted  parts  are  ncj^oliated  to  dif- 
ferent holdci's  in  due  couise,  he  is  lialile  (»n  e\ery  such 
])ai-t   as  if  it  were  a  separate  hill. 

[Acceptor  Liable  on  Outstanding  Part  Accepted  by 
Him.  j  jj  IS'J.  When  the  acceptor  of  a  hill  drawn  in  a 
set  pays  it  witiioiit  i-e(|uirin'/  the  part  l»earin«;  his  accept- 
ance to  l)c  (leli\ci-ed  up  to  liiiii.  and  that  |)arl  at  maturity 
is  outstandin<;  in  the  hands  of  a  liohlei-  in  due  course,  he 
is    liable    to   the    holdei-   thereon. 

I  Payment  of  One  Part  Discharges  All.  |  ij  lS;i,  Except 
as  herein  otherwise  piovided.  wheic  any  one  part  of  a  hill 
drawn  in  a  set  is  diseharfrod  by  payment  or  otherwise,  the 
whole  bill  is  discharged. 


TITLE   111.— PRO^riSSOKY   NOTES   AXI)   CHECKS. 
Article  I. 

[What  is  a  Negotiable  Promissory  Note.]  ;^  184.  A 
ne>>otiable  promissory  note  within  the  meaning  of  this  act 
is  an  unconditional  promise  in  writing  made  by  one  per- 
son to  another,  signed  by  the  maker,  engaging  to  pay  on 
demand  or  at  a  fixed  or  determinable  future  time,  a  sum 
certain  in  money  to  order  or  to  bearer.  "Where  a  note 
is  drawn  to  the  maker's  own  order,  it  is  not  complete 
until  indorsed  bv  him. 


APPENDIX    D 


481 


[What  is  a  Check.]  §  185.  A  check  is  a  bill  ol"  ex- 
change drawn  on  a  bank  payable  on  demand.  Except  as 
herein  otherwise  provided,  the  provisions  of  this  act  are 
applicable  to  a  bill  of  exchange  payable  on  demand  and 
apply  to  a  check. 

[Requisite  Action  on  Checks,  Presentment,  Notice,  Etc.] 
§  18(i.  A  check  must  be  presented  fur  payment  within  a 
reasonable  time  after  its  issue,  and  notice  of  dishonor 
given  to  the  drawer  as  provided  for  in  the  case  of  bills  of 
exchange,  or  the  drawer  will  be  discharged  from  liability 
thereon  to  the  extent  of  the  loss  caused  by  the  delay. 

[Certification  Equivalent  to  Acceptance.]  §  187.  Where 
a  cheek  is  certitied  by  the  bank  on  which  it  is  drawn,  the 
certification  is  e(|uivalent  to  an  acceptance. 

[Certification  Discharges  All  Drawers  and  Indorsers.l 
§  188.  Where  the  holder  of  a  check  procures  it  to  be  ac- 
cepted or  certified,  the  drawer  and  all  indorsers  are  dis- 
charged from  liability  thereon. 

[Check  Does  Not  Operate  as  Assignment  of  Fund  Until 
Acceptance.!  >^  18i).  A  check  of  itself  does  not  operate 
as  an  assignment  of  any  part  of  the  funds  to  the  credit 
of  the  drawer  wnth  the  bank,  and  the  bank  is  not  liable 
to  the  holder,  unless  and  until  it  accepts  or  certifies  the 
check. 

TITLE  IV.— GENERAL  PROVISIONS. 
Article  I. 

[Title  of  Act.]  §  100.  This  act  shall  be  known  as  the 
Negotial>le  Instrument   Law. 

[Meaning  of  Words  Used  in  Act.]  ^  101.  In  this  act, 
unless  the  context  otherwise  requires : 

"Acceptance*'  means  an  acceptance  completed  by  deliv- 
ery or  notification. 

"Action"  includes  counter-claim  and  set-off. 

"Bank"  includes  any  person  or  association  of  persons 
carrying  on  the  business  of  banking,  whether  incorporated 

or  not. 

"Bearer"  means  the  person  in  possession  of  a  bill  or  note 

which  is  payable  to  bearer. 


4;i_>  ittnky's  uau  f.x \minatu>n'  ukviknv 

'•iJill"  mraiis  l.ill  (.r  .•xrliaii^;.',  aii.l  ■iL.tc"  in.'aiis  ii.'j;.*- 
tialtlf  pnnnissory   iiotf. 

•  Dulivery "  means  li  aii.st"«r  nf  iM.ssr.s.sii.ii.  a.tiial  or  vi)U- 
struetive,  from  oiir  person  to  anotlnr. 

"llokler"  means  the  payee  or  indorse."  i.l  a  hill  or  note, 
who  is  in  possession  of  it.  or  the  l>eurer  thereof. 

"Indorsement"  means  an  indorsement  eomph*ted  hy  de- 
livery. 

"Instrument"  means  nej^otiahh-   instrument. 

"Issue"  means  the  lirst  delivery  of  the  instrum.-nt.  com- 
plete in   form,  to  a  person  who  takes  it  as  a  hohhr. 

''Person"  includes  a  body  of  persons,  wlicthir  incor- 
porated or  not. 

"Value"   means   valualde   consideration. 

"Written"    includes    pi-intrd.     and    ••\vritin<j"     includes 

print. 

I  Person  Primarily  Liable.!  ii  r.»'J.  'I'hc  p.-ison  -i.ri- 
marily"  liai)le  on  aji  instrument  is  the  person  who,  by  tlie 
terms  of  the  in.strument,  is  absolutely  re(|uircd  to  pay  the 
same.     All  other  parties  are  "secondarily"  lialtlc. 

I  Reasonable  Time.;  .:;  !!•:?.  in  determining:  what  is  a 
"reasonable  time"  or  an  '•  unrcasonabb-  time."  regard  is 
to  be  had  to  the  nature  of  the  instrument,  the  usage  of 
trade  or  business  (if  any)  with  respect  to  such  instruments, 
and  the  facts  of  tlie  particular  casiv 

I  Time  Prescribed— Sundays  and  Holidays,  etc.]  J$  194. 
AVhei-c  the  day,  or  the  last  day.  for  doint:  an  act  herein  re- 
<|uired  or  permitted  to  be  done  falls  on  Sunday  or  on  a 
holiday,  the  act  may  be  done  on  the  next  sueeeedinj?  secu- 
lar or  business   day. 

i  Provisions  of  Act  Not  to  Apply  to  Previously  Given 
Instruments.!  v<  li).').  The  i)i-o\  isions  of  this  act  do  not 
apply  to  negotiable  instruments  made  and  delivered  prior 
to  the  passage   hereof. 

[Law  Merchant  to  Govern  Cases  Not  Provided  in  This 
Act.]  v^  li'O.  Tu  any  ease  not  provided  for  in  this  aet, 
the  rules  of  the  law  merchant  shall  govern. 


APPENDIX  E. 


A^IERICAX    BAR    ASSOCIATION— CAXOXS    OF    PRO- 
FESSIONAL ETHICS. 

Chapter  I. 
PREAMBLE. 
In  America,  where  the  stability  of  courts  and  of  all  de- 
partments of  government  rests  upon  the  approval  of  the 
people,  it  is  peculiarily  essential  that  the  system  for  es- 
tablishing and  dispensing  justice  be  developed  to  a  high 
point  of  efficiency  and  so  maintained  that  the  public  shall 
have  absolute  confidence  in  the  integrity  and  impartiality 
of  its  administration.  The  future  of  the  Republic,  to  a 
great  extent,  depends  upon  our  maintenance  of  justice  pure 
and  unsullied.  It  cannot  be  so  maintained  unless  the  con- 
duct and  the  motives  of  the  members  of  our  profession  are 
such  as  to  merit  the  approval  of  all  just  men. 

Chapter  II. 
THE  CANONS  OF  ETHICS. 
No  code  or  set  of  rules  can  be  framed  which  will  partic- 
ularize all  the  duties  of  the  lawyer  in  the  varying  phases 
of  litigation  or  in  all  the  relations  of  professional  life. 
The  following  canons  of  ethics  are  adopted  by  the  American 
Bar  Association  as  a  general  guide,  yet  the  enumeration  of 
particular  duties  should  not  be  construed  as  a  denial  of 
the  existence  of  others  equally  imperative,  though  not 
specifically  mentioned : 

Section  1.    The  Duty  of  the  Lawyer  to  the  Courts. 
It  is  the  duty  of  the  lawj'-er  to  maintain   towards  the 
courts  a  respectful  attitude,  not  for  the  sake  of  the  con- 

433 


434  putney's  bar  examination  uevikw 

temporary  incumbont  of  llic  .iiidnial  ot'liro,  hut  lor  tlie 
rnaiiitenanee  oi'  its  supi-tnu-  impoitaiUM.'.  Judf^es,  not  be- 
ing wholly  free  to  detVnd  tlniiis(l\  rs,  an-  pt'culiurly  en- 
titled to  receive  the  siii)|>()rt  of  the  iJar  a«,Minst  unjnst 
(•ritieism  and  clamor.  AVhenever  there  is  proper  groinul 
for  serious  complaint  of  a  judicial  otTicer,  it  is  the  right 
and  duty  of  the  lawyer  to  submit  his  grievances  to  the 
proper  authorities.  In  such  cases,  but  not  otherwise,  such 
charges  should  Ix'  encouraged  and  thf  pci-son  making  thrm 
should    be    protected. 

Section  2.  The  Selection  of  Judges. 
It  is  the  duty  of  the  liar  to  endeavor  to  prevent  political 
considerations  from  outweighing  judicial  fitness  in  the  se- 
lection of  judges.  It  should  protest  earnestly  and  actively 
against  the  appointment  or  election  of  those  who  are  un- 
suitable for  the  bench ;  and  it  should  strive  to  have  ele- 
vated thereto  only  those  willing  to  forego  other  employ- 
ments, Avhether  of  a  l)usiness,  political  or  other  character, 
which  may  embarrass  theii-  free  and  fair  consideration  of 
(|uestions  before  them  for  decision.  The  aspiration  of 
lawyers  for  judicial  position  should  be  governed  by  an 
impartial  estimate  of  their  ability  to  add  honor  to  the  of- 
fice and  not  by  a  desire  for  the  distinction  the  jjosition  may 
bring  to  themselves. 

Section  3.     Attempts  to  Exert  Personal  Influence  on  the 

Court. 

Marked  attention  and  unusual  hospitality  (m  the  part 
of  a  lawyer  to  a  judge,  uncalled  for  by  the  personal  rela- 
tions of  the  parties,  subject  both  the  judge  and  the  lawyer 
to  misconstructions  of  motive  and  should  be  avoided.  A 
lawyer  should  not  communicate  or  argue  privately  with  the 
judge  as  to  the  merits  of  a  pending  cause,  and  he  deserves 
rebuke  and  denunciation  for  any  device  or  attempt  to  gain 
from  a  judge  special  personal  consideration  or  favor.  A 
self-respecting  independence  in  the  discharge  of  profes- 
sional duty,  w^ithout  denial  or  diminution  of  the  courtesy 


\PPE.\DIX    E  435 

and  respect  due  the  judge's  station,  is  the  only  proper 
foundation  for  cordial  personal  and  official  relations  be- 
tween Bench  and  Bar. 

Section  4.    When  Counsel  for  an  Indigent  Prisoner. 
A  lawyer  assigned  as  counsel  for  an  indigent  prisoner 
ought  not  to  ask  to  be  excused  for  any  trivial  reason,  and 
should  always  exert  his  best  efforts  in  his  behalf. 

Section  5.     The  Defense  or  Prosecution  of  Those  Accused 

of  Crime. 

It  is  the  right  of  the  laM^yer  to  undertake  the  defense  of 
a  person  accused  of  crime,  regardless  of  his  personal  opin- 
ion as  to  the  guilt  of  the  accused:  otherwise  innocent  per- 
sons, victims  only  of  suspicious  circumstances,  might  be 
denied  proper  defense.  Having  undertaken  such  defense, 
the  lawyer  is  bound  by  all  fair  and  honorable  means,  to 
present  every  defense  that  the  law  of  the  land  permits, 
to  the  end  that  no  person  may  be  deprived  of  life  or  liberty, 
but  by  due  process  of  law. 

The  primary  duty  of  a  lawyer  engaged  in  public  prose- 
cution  is  not  to  convict,  but  to  see  that  .justice  is  done. 
The  suppression  of  facts  or  the  secreting  of  witnesses  capa- 
ble of  establishing  the  innocence  of  the  accused  is  highly 
reprehensible. 

Section  6.     Adverse  Influences  and   Conflicting  Interests. 

It  is  the  duty  of  a  lawyer  at  the  time  of  retainer  to  dis- 
close to  the  client  all  the  circumstances  of  his  relations  to 
the  parties,  and  any  interest  in  or  connection  with  the  con- 
troversy, which  might  influence  the  client  in  the  selection 
of  counsel. 

It  is  unprofessional  to  represent  conflicting  interests,  ex- 
cept by  express  consent  of  all  concerned  given  after  a  full 
disclosure  of  the  facts.  Within  the  meaning  of  this  canon, 
a  lawyer  represents  conflicting  interests  when,  in  behalf  of 
one  client,  it  is  his  dutv  to  contend  for  that  which  duty  to 
another  client  requires  him  to  oppose. 


436  putney's  iiAU  kxamination  hkview 

Till'  oMigation  to  rcprrscnt  tin-  client  witli  iiiitli\  itlcd 
fidelity  and  not  to  divnl'^c  his  stM-rets  or  confiileiires  for- 
bids also  the  suhsiqucnt  acceptance  of  retainers  or  employ- 
ment from  others  in  matters  adversely  atVectinj;  any  inter- 
est of  the  client  with  respect  to  which  eontidenee  has  been 
reposed. 

Section  7.    Professional  Colleagues  and  Conflicts  of  Opinion. 

A  client's  pi-olVcr  of  assistance  t»f  addit ii>ii;il  cunnsel 
shonid  not  be  rejrarded  as  evidence  of  want  of  conlidcnce, 
but  the  matter  shonid  l>e  left  to  the  determination  of  the 
client.  A  lawyer  shonid  decline  association  as  coUeagne, 
if  it  is  objectionable  to  the  ori«;inal  counsel.  Init  if  the  law- 
yer first  retained  is  relieved,  another  may  come  into  the 
case. 

When  lawyers  jointly  associated  in  a  cause  cannot  apree 
as  to  any  matter  vital  to  the  interest  of  the  client,  the  con- 
llict  of  oi)inion  should  be  fiankly  stated  to  iiim  for  his  final 
determination.  His  decision  should  l)e  accepted  uidess  the 
nature  of  tlu'  difl'erence  makes  it  impracticable  for  the  law- 
yer whose  judyineiit  has  1 n  overiuled  to  co-operate  ef- 
fectively. In  this  event  it  is  his  duty  to  ask  the  client  to 
relieve    him. 

Efforts,  direct  or  indirect,  in  any  Avay  to  encroach  upon 
the  business  of  another  lawyer,  are  unworthy  of  those  who 
should  be  brethren  at  the  bar;  but,  nevertheless,  it  is  the 
ris^ht  of  any  lawyer,  without  fear  or  favor,  to  give  proper 
advice  to  those  seidvin*;  relief  airainst  unfaithful  or  ncf^lect- 
ful  counsel,  generally  after  communication  with  the  lawyer 
of  whom  the  complaint  is  made. 

Section  8.  Advising  Upon  the  Merits  of  a  Client's  Cause. 
A  lawyer  should  endeavor  to  obtain  full  knowledge  of 
his  client's  cause  before  advising  thereon,  and  he  is  bound 
to  give  a  candid  opinion  of  the  merits  and  probable  result 
of  pending  or  contemplated  litigation.  The  miscarriages 
to  which  justice  is  subject,  by  reason  of  suprises  and  dis- 
appointments in  evidence  and  witnesses,  and  through  mis- 


APPENDIX    E 


437 


takes  of  juries  and  errors  of  courts,  even  though  only  oc- 
casional, admonish  lawyers  to  beware  of  bold  and  confident 
assurances  to  clients,  especially  where  the  employment  may 
depend  upon  such  assurance.  Whenever  the  controversy 
will  admit  of  fair  adjustment,  the  client  should  be  ad- 
vised to  avoid  or  to  end  the  litigation. 

Section  9.  Negotiations  With  Opposite  Party. 
A  lawyer  should  not  in  any  way  communicate  upon  the 
subject  of  controversy  with  a  party  represented  by  coun- 
sel; much  less  should  he  undertake  to  negotiate  or  com- 
promise the  matter  with  him,  but  should  deal  only  with 
his  counsel.  It  is  incumbent  upon  the  lawyer  most  par- 
ticularly to  avoid  everything  that  may  tend  to  mislead 
a  party  not  represented  by  counsel,  and  he  should  not 
undertake  to  advise  him  as  to  the  law. 

Section  10.     Acquiring  Interest  in  Litigation. 
The  lawyer  should  not  pui-chase  any  interest  in  the  sub- 
ject matter  of  the  liti<ration  which  he  is  conducting. 

Section  11.  Dealing  With  Trust  Property. 
Money  of  the  client  or  otlier  trust  propei-ty  coming  into 
the  possession  of  the  lawyer  should  be  reported  promptly, 
and  except  with  the  client's  knowledge  and  consent  should 
not  be  commingled  with  his  private  property  or  be  used  by 
him. 

Section  12.     Fixing  the  Amount  of  the  Fee. 

In  fixing  fees,  lawyers  should  avoid  charges  which  over- 
estimate their  advice  and  services,  as  well  as  those  which 
undervalue  them.  A  client's  ability  to  pay  cannot  justify 
a  charge  in  excess  of  the  value  of  the  service,  though  his 
property  may  require  a  less  charge,  or  even  none  at  all. 
The  reasonable  requests  of  brother  lawyers,  and  of  their 
widows  and  orphans  without  ample  means,  should  receive 
special  and  kindly  consideration. 

In   determining  the   amount   of  the  fee,   it  is  proper  to 


438  PUTNEY'ss    UAH    KXAMlNATlo.N    UKVIKW 

consider:  (I)  the  time  and  laliDi-  it'<iuii-('d,  tin-  novelty  and 
dittic'idty  of  the  ((uestions  involved,  and  the  sliill  re(|ui.site 
properly  to  conduct  the  cause;  (2)  whether  the  acceptauee 
of  employment  in  the  particuhir  case  will  preclude  the 
lawyer's  appearance  for  others  in  cases  likely  to  arise  out  of 
the  transaction,  and  in  wiiich  there  is  a  reasonable  expec- 
tation that  otherwise  he  woultl  l)e  employed,  or  will  in- 
volve the  loss  of  other  business  while  employed  in  the  par- 
ticular case  or  antagonisms  with  other  clients;  (8)  the 
customary  charges  of  the  bar  for  similar  services;  (4)  the 
amount  involved  in  the  controversy  and  the  benefits  re- 
sulting to  the  client  from  the  services;  (5)  the  contingency 
or  the  certainty  of  the  compensation;  and  (fi)  the  char- 
acter of  the  employment,  whether  casual  or  for  an  estab- 
lished and  constant  client.  No  one  of  these  considerations 
in  itself  is  controlling.  They  are  mere  iruides  in  ascertain- 
ing the  real  value  of  the  service. 

In  fixing  fees  it  should  never  I)e  foi-gotten  that  the  pro- 
fession is  a  l)i"an«-h  of  the  iidiiiinistriition  of  justice  and  not 
a  mere  money-get tin.ir  trade. 

Section  13.     Contingent  Fees. 
Contingent  fees   lead   to   many   abuses,    and   where  sanc- 
tioned by  law  should  be  under  the  supervision  of  the  court. 

Section  14.  Suing  a  Client  for  a  Fee. 
Controversies  with  clients  concerning  compensation  are 
to  be  avoided  by  the  lawyer  so  far  as  shall  be  compatible 
Avith  his  self-respect  and  with  his  right  to  receive  reason- 
able recompense  for  his  services ;  and  lawsuits  with  clients 
should  be  resorted  to  only  to  prevent  injustice,  imposition 
or  fraud. 

Section  15.    How  Far  a  Lawyer  May  Go  in  Supporting  a 
Client's  Cause. 

Nothing  operates  more  certainly  to  create  or  to  foster 
popular  prejudice  against  kiw^yers  as  a  class,  and  to  de- 
prive the  profession  of  that  full  measure  of  public  esteem 


APPENDIX    E  439 

and  confidence  which  belongs  to  the  proper  discharge  of 
its  duties  than  dues  the  false  claim,  often  set  up  by  the 
unscrupulous  in  defense  of  questionable  transactions,  that 
it  is  the  duty  of  the  lawyer  to  do  whatever  may  enable 
him  to  succeed  in  winning  his  client's  cause. 

It  is  improper  for  a  lawyer  to  assert  in  argument  his 
personal  belief  in  his  client's  innocence  or  in  the  justice 
of  his  cause. 

The  lawyer  owes  "entire  devotion  to  the  interest  of  the 
client,  warm  zeal  in  the  maintenance  and  defense  of  his 
rights  and  the  exertion  of  his  utmost  learning  and  ability, 
to  the  end  that  nothing  be  taken  or  be  withheld  from  him, 
save  by  the  rules  of  law,  legally  applied.  No  fear  of  ju- 
dicial disfavor  or  public  unpopularity  should  restrain  him 
from  the  full  discharge  of  his  duty.  In  the  judicial  forum 
the  client  is  entitled  to  the  benefit  of  any  and  every  rem- 
edy and  defense  that  is  authorized  by  the  law  of  the  land, 
and  he  may  expect  his  lawyer  to  assert  every  such  remedy 
or  defense.  But  it  is  steadfastly  to  be  borne  in  mind  that 
the  great  trust  of  the  lawyer  is  to  be  performed  within 
and  not  without  the  bounds  of  the  law.  The  office  of  at- 
torney does  not  permit,  much  less  does  it  demand  of  him 
for  any  client,  violation  of  law  or  any  manner  of  fraud  or 
chicane.  He  must  obey  his  own  conscience  and  not  that 
of  his  client. 

Section   16.     Restraining-  Clients   from   Improprieties. 

A  lawyer  should  use  his  best  efforts  to  restrain  and  to 
prevent  his  clients  from  doing  those  things  which  the  law- 
yer himself  ought  not  to  do.  particularly  with  reference  to 
their  conduct  towards  courts,  judicial  officers,  jurors,  wit- 
nesses and  suitors.  If  a  client  persists  in  such  wrong- 
doing the  lawyer  should  terminate  their  relation. 

Section  17.     Ill  Feeling-  and  Personalities  Betw^een 
Advocates. 
Clients,  not  lawyers,   are  the  litigants.     AYhatever  may 
be  the  ill-feeling  existincr  between  clients,  it  should  not  be 


440  I'L'TNEY's   uau  lxaminatiun    ulmkw 

allowed  to  intluenee  coimsi-l  in  tlit-ir  coiidut't  aiul  iK-nu-anor 
toward  each  other  or  toward  suitors  in  tht-  lasr.  All  piT- 
sonalities  between  counsel  should  he  scrui»ul()usly  avoided. 
In  the  trial  of  a  cause  it  is  indecent  to  alludi'  to  tlw  per- 
sonal history  or  the  personal  jjcculiaritics  and  idiosyn- 
crasies of  counsel  on  the  other  side.  Personal  collo(iuies 
between  counsel  which  cause  delay  and  promote  unseemly 
wranuding  should  also  be  carefully  avuitled. 

Section   18.     Treatment   of   Witnesses   and   Litigants. 

A  lawyer  should  always  treat  adverse  witne.s.ses  and 
suitors  Avith  fairness  and  due  consideration,  and  he  should 
never  minister  to  the  malevolence  or  i)re.judi(M's  of  a  client 
in  the  tiiiil  or  conduct  of  a  cause.  The  (dient  cannot  be 
made  the  keeper  of  the  lawyer's  conscience  in  pntfessional 
matters.  He  has  no  rij;ht  to  <l('mand  that  his  counsel  shall 
abuse  the  opposite  party  or  imlul^'c  in  otfensive  pn-soii- 
alities.  Trnjiroper  speech  is  not  excusai)le  on  the  t:round 
that  it  is  what  the  client  would  say  if  speaking'  in  his  own 
behalf. 

Section   19.     Appearance   of   Lawyer   as   Witness   for   His 

Client. 
"When  a  lawyer  is  a  witness  for  his  client,  except  as  to 
merely  formal  matters,  such  as  the  attestation  or  custody 
of  an  instrument  and  the  like,  he  shoidd  leave  the  trial  of 
the  case  to  other  counsel.  Except  when  essential  to  the 
ends  of  justice,  a  lawyer  should  avoid  testifying  in  court 
in  behalf  of  his  client. 

Section  20.  Newspaper  Discussion  of  Pending  Litigation. 
Newspaper  pul)lications  by  a  lawyei-  as  to  pending-  oi- 
anticipated  litigation  may  intei-fere  witli  a  faii-  ti-ial  in 
the  courts  and  othorwiso  prejudice  the  due  administration 
of  justice.  Generally  they  are  to  be  condemned.  If  the 
extreme  circumstances  of  a  particular  case  justify  a  stati'- 
ment  to  the  public,  it  is  unprofessional  to  makf  it 
anonvmouslv.     An  ex  ])arte  reference  to  the  facts  should 


APPENDIX    E  441 

not  go  beyond  quotation  from  the  records  and  papers  on 
file  in  tlie  court;  but  even  in  extreme  cases  it  is  better 
to  avoid  any  ex  parte  statement. 

Section  21.     Punctuality   and   Expedition. 

It  is  the  duty  of  the  lav.yer  not  only  tu  lus  client,  but 
also  to  the  courts  and  to  the  public  to  be  punctual  in  at- 
tendance, and  to  be  concise  and  direct  in  the  trial  and 
disposition   of   causes. 

Section  22.     Candor  and  Fairness, 

The  conduct  of  the  lawyer  before  the  court  and  with 
other  lawyers  should  be  characterized  by  candor  and  fair- 
ness. 

It  is  not  candid  or  fair  for  the  lawyer  knowingly  to 
misquote  the  contents  of  a  paper,  the  testiiuony  of  a  wit- 
ness, the  language  or  the  argument  of  opposing  counsel, 
or  the  language  of  a  decision  or  a  text-book ;  or  with 
knowledge  of  its  invalidity,  to  cite  as  authority  a  decision 
that  has  been  overruled,  or  a  statute  that  has  been  re- 
pealed ;  or  in  argument  to  assert  as  a  fact  that  which  has 
not  been  proved,  or  in  those  jurisdictions  where  a  side 
has  the  opening  and  closing  arguments  to  mislead  his  op- 
ponent by  concealing  or  withholding  positions  in  his  open- 
ing argument  upon  which   his  side   then   intends  to   rely. 

It  is  unprofessional  and  dishonorable  to  deal  other  than 
candidly  with  the  facts  in  taking  the  statements  of  wit- 
nesses, in  drawing  affidavits  and  other  documents,  and  in 
the  presentation  of  causes. 

A  lawyer  should  not  offer  evidence  which  he  knows  the 
court  should  reject,  in  order  to  get  the  same  before  the 
jury  by  argument  for  its  admissibility,  nor  should  he  ad- 
dress to  tlie  judge  arguments  upon  any  point  not  properly 
calling  for  determination  by  him.  Neither  should  be  in- 
troduce into  an  argument,  addressed  to  the  court,  remarks 
or  statements  intended  to  influence  the  jury  or  bystanders. 

These  and  all  kindred  practices  are  unprofessional  and 
unworthv  of  an  officer  of  the  law  charged,  as  is  the  law- 


442  putney's  hah  examination  ukview 

yer,   with  the    duty    o£   aiding   iu     the     admiuistrution    of 
justice. 

Section  23.  Attitude  Toward  Jury. 
All  attempts  to  cui-ry  iavur  with  juries  by  fawning, 
flattery  or  pretended  solieitude  for  their  personal  eomfort 
are  unprofessional.  Suggestions  of  eounsel,  looking  to  the 
comfort  or  convenience  of  jurors,  antl  proi)ositions  to  dis- 
pense with  argument,  should  be  made  to  the  court  out  of 
the  jury's  hearing.  A  lawyer  must  never  eonverse  private- 
ly with  jurors  about  the  case;  and  both  before  and  during 
the  trial  he  should  avoid  communicating  with  them,  even 
as  to  matters  foreign  to  the   cause. 

Section  24.    Right  of  Lawyer  to  Control  the  Incidents  of 

the  Trial. 
As  to  incidental  matters  pending  the  trial,  not  affecting 
the  merits  of  the  cause,  or  working  substantial  i)rejudice 
to  the  rights  of  the  client,  such  as  forcing  tlie  opposite 
lawyer  to  trial  when  he  is  under  affliction  or  l)ereavement ; 
forcing  the  trial  on  a  particular  day  to  the  injury  of  the 
opposite  lawyer  when  no  harm  will  result  from  a  trial  at 
a  different  time ;  in  agreeing  to  an  extension  of  time  for 
signing  a  bill  of  exceptions,  cross  interrogatories  and  the 
like,  the  law^yer  must  be  allowed  to  judge.  In  such  mat- 
ters no  client  has  a  right  to  demand  that  his  counsel  shall 
be  illiberal,  or  that  he  do  anything  therein  repugnant  to 
his  own  sense  of  honor  and  propriety. 

Section  25.  Taking  Technical  Advantage  of  Opposite 
Counsel;  Agreements  With  Him. 
A  lawyer  should  not  ignore  known  customs  or  practice 
of  the  bar  or  of  a  particular  court,  even  when  the  law 
permits,  without  giving  timely  notice  to  the  opposing 
counsel.  As  far  as  possible,  important  agreements,  affect- 
ing the  rights  of  clients,  should  be  reduced  to  writing;  but 
it  is  dishonorable  to  avoid  performance  of  an  agreement 
fairly  made  because  it  is  not  reduced  to  writing,  as  re- 
quired by  rules  of  court. 


APPENDIX    E 


443 


Section    26.      Professional    Advocacy    Other    Than    Before 

Courts. 
A  hiwyer  openly,  and  in  liis  ti'uc  cliniactii',  may  render 
professional  services  before  legislative  or  other  bodies,  re- 
garding proposed  legislation  and  in  advocacy  of  claims 
before  departments  of  governments,  upon  the  same  prin- 
ciples of  ethics  which  justify  his  appearance  before  the 
courts;  but  it  is  unprofessional  for  a  lawyer  so  engaged 
to  conceal  his  attorneyship,  or  to  employ  secret  personal 
solicitations,  or  to  use  means  other  than  those  addressed 
to  the  reason  and  understanding  to  influence  action. 

Section  27.    Advertising,  Direct  or  Indirect. 

The  most  worthy  and  effective  advertisement  possible, 
even  for  a  young  lawyer,  and  especially  with  his  brother 
lawyers,  is  the  establishment  of  a  well-merited  reputation 
for  professional  capacity  and  fidelity  to  trust.  This  can- 
not be  forced,  but  must  be  the  outcome  of  character  and 
conduct.  The  publication  or  circulation  of  ordinary  simple 
l)usiness  cards,  being  a  matter  of  personal  taste  or  local 
custom,  and  sometimes  of  convenience,  is  not  per  se  im- 
proper. But  solicitation  of  business  by  circulars  or  ad- 
vertisements, or  by  personal  communications  or  interviews, 
not  warranted  by  personal  relations,  is  unprofessional.  It 
is  equall}''  unprofessional  to  procure  business  by  indirec- 
tion through  touters  of  any  kind,  whether  allied  real  estate 
firms  or  trust  companies  advertising  to  secure  the  draw- 
ing of  deeds  or  wills  or  offering  retainers  in  exchange  for 
executorships  or  trusteeships  to  be  influenced  by  the  law- 
yer. Indirect  advertisement  for  business  by  furnishing 
or  inspiring  newspaper  comments  concerning  causes  in 
which  the  lawyer  has  been  or  is  engaged,  or  concerning 
the  manner  of  their  conduct,  the  magnitude  of  the  in- 
terests involved,  the  importance  of  the  lawyer's  positions, 
and  all  other  like  self -laudation  defy  the  traditions,  and 
lower  the  tone  of  our  hiarh  calling,  and  are  intolerable. 


444  putney's  ljak  kxaminatiux  kevilw 

Section  28.     Stirring  Up  Litigation,  Directly  or  Through 

Agents. 
It  is  improfebsionai  for  a  lawyer  to  volunteer  advice  to 
bring  a  lawsuit,  except  in  rare  cases  where  ties  of  blood, 
relationship  or  trust  make  it  his  duty  to  do  so.  Stirring 
up  strife  and  litigation  is  not  only  unprofessional,  l)ut  it 
is  indictable  at  common  law.  It  is  disreputable  to  hunt 
up  defects  in  titles  or  other  causes  of  action  and  inform 
thereof  in  order  to  be  employed  to  bring  suit,  or  to  breed 
litigation  by  seeking  out  those  with  claims  for  personal 
injuries  or  those  having  any  other  grounds  of  action  in 
order  to  secure  them  as  clients,  or  to  employ  agents  or 
runners  for  like  purposes,  oi-  to  pay  or  reward,  directly 
or  indirectly,  those  who  bring  or  influence  the  bringing  of 
such  cases  to  his  office,  or  to  remunerate  policemen,  court 
or  prison  officials,  physicians,  hospital  attaches  or  others 
who  may  succeed,  under  the  guise  of  giving  disinterested 
friendly  advice,  in  influencing  the  criminal,  the  sick  and 
the  injured,  the  ignorant  or  others,  to  seek  his  professional 
services.  A  duty  to  the  public  and  to  the  profession  de- 
volves upon  every  member  of  the  bar,  having  knowledge 
of  such  practices  upon  the  part  of  any  practitioner,  im- 
mediately to  inform  thereof  to  the  end  that  the  offender 
may  be  disbarred. 

Section  29.     Upholding  the  Honor  of  the  Profession. 

Lawyers  should  expose  without  fear  or  favor  before 
the  proper  tribunals  corrupt  or  dishonest  conduct  in  the 
profession,  and  should  accept  without  hesitation  employ- 
ment against  a  member  of  the  bar  who  has  wronged  his 
client.  The  counsel  upon  the  trial  of  a  cause  in  which 
perjury  has  been  committed  owe  it  to  the  profession  and 
to  the  public  to  bring  the  matter  to  the  knowledge  of  the 
prosecuting  authorities.  The  la-svyer  should  aid  in  guard- 
ing the  bar  against  the  admission  to  the  profession  of 
candidates  unfit  or  unqualified  because  deficient  in  either 
moral  character  or  education.  He  should  strive  at  all 
times  to  uphold  the  honor  and  to  maintain  the  dignity  of 


APPENDIX    E  445 

the   profession   and  to   improve  not   onl}'-  the  law   but  the 
administration  of  justice. 

Section  30.     Justifiable  and  Unjustifiable  Litigations. 

The  lawyer  must  decline  to  conduct  a  civil  cause  or  to 
make  a  defense  when  convinced  that  it  is  intended  merely 
to  harass  or  to  injure  the  opposite  party  or  to  work  op- 
pression or  wrong.  But  otherwise  it  is  his  right,  and,  hav- 
ing accepted  retainer,  it  becomes  his  duty  to  insist  upon 
the  judgment  of  the  court  as  to  the  legal  merits  of  his  client 's 
claim.  His  appearance  in  court  should  be  deemed  equiv- 
alent to  an  assertion  on  his  honor  that  in  his  opinion  his 
client's  case  is  one  proper  for  judicial  determination. 

Section  31.    Responsibility  for  Litigation. 

No  lawyer  is  obliged  to  act  either  as  adviser  or  advo- 
cate for  every  person  who  may  wish  to  become  his  client. 
lie  has  the  right  to  decline  employment.  Every  lawyer 
upon  his  own  responsibility  must  decide  what  business  he 
will  accept  as  counsel.  Avhat  causes  he  will  bring  into  court 
for  plaintiffs,  what  cases  he  will  contest  in  court  for  de- 
fendants. The  responsibility  for  advising  questionable 
transactions,  for  bringing  questionable  suits,  for  urging 
questionable  defenses,  is  the  lawyer's  responsibility.  He 
cannot  escape  it  by  urging  as  an  excuse  that  he  is  only 
following   his    client's   instructions. 

Section  32.    The  Lawyer's  Duty  in  Its  Last  Analysis. 

No  client,  corporate  or  individual,  however  powerful, 
nor  any  cause,  civil  or  political,  however  important,  is  en- 
titled to  receive,  nor  should  any  lawyer  render,  any  service 
or  advice  involving  disloyalty  to  the  law  whose  ministers 
we  are,  or  disrespect  of  the  judicial  office,  which  we  are 
bound  to  uphold,  or  corruption  of  any  person  or  persons 
exercising  a  public  office  or  private  trust,  or  deception  or 
betrayal  of  the  public.  When  rendering  any  such  im- 
proper service  or  advice,  the  lawyer  invites  and  merits 
stern    and    just    condemnation.     Correspondingly,   he    ad- 


446  putney's    UAH    EXAMI.NATIUN    REVIEW 

varices  the  honor  of  his  profession  and  the  best  interests  of 
his  client  when  he  renders  service  or  gives  advice  tending 
to  impress  upon  the  client  antl  his  undertaking  exact  com- 
pliance with  the  strictest  principles  of  moral  law.  He 
must  also  observe  and  advise  his  client  to  observe  the 
statute  law,  though  until  a  statute  shall  have  been  con- 
strued and  interpreted  by  competent  adjudication,  he  is 
free  and  is  entitled  to  advise  as  to  its  validity  and  as  to 
what  he  conscientiously  believes  to  be  its  just  meaning  and 
extent.  But  above  all  a  lawyer  will  find  his  highest  honor 
in  a  deserved  reputation  for  fidelity  to  private  trust,  and 
to  public  duty,  as  an  honest  man  and  as  a  patriotic  and 
loyal  citizen. 

Chapter  III. 

OATH  OF  ad:missiox. 

The  general  principles  which  should  ever  control  the 
lawyer  in  the  practice  of  his  profession  are  clearly  set  forth 
in  the  following  Oath  of  Admission  to  the  bar,  formulated 
upon  that  in  use  in  the  State  of  Washington,  and  which 
conforms  in  its  main  outlines  to  the  "duties"  of  lawyers 
as  defined  by  statutory  enactments  in  that  and  many  other 
states  of  the  Union=-' — duties  which  they  are  SAVorn  on 
admission  to  obey  and  for  the  wilful  violation  of  which 
disbarment   is   provided : 

I  DO  SOLEMNLY  SWEAR: 

I  will  support  the  Constitution  of  the  United  States  and 
the  Constitution  of  the  State  of    

I  will  maintain  the  respect  due  to  Courts  of  Justice  and 
judicial  otficers ; 

I  will  not  counsel  or  maintain  any  suit  or  proceeding 
which  shall  appear  to  me  to  be  unjust,  nor  any  defense 

*Alabama,  California,  Georgia,  Idaho.  Indiana,  Iowa,  Minnesota, 
Mississippi,  Nebraska.  North  Dakota,  Oklahoma,  Oregon  South  Da- 
kota, Utah,  Washington  and  Wisconsin.  The  oaths  administered 
on  admission  to  the  bar  in  all  the  other  states  require  the  ob- 
servance of  the  highest  moral  principle  in  the  practice  of  the 
profession,  but  the  duties  of  the  lawyer  are  not  as  specifically 
defined  by  law  as  in  the  states  named. 


APPENDIX    E  447 

except  such  as  I  believe  to  he  honestly  debatable  under 
the  law  of  the  land; 

I  will  employ  for  the  purpose  of  maintaining-  the  causes 
eonfided  to  me  such  means  only  as  are  consistent  with 
truth  and  honor,  and  will  never  seek  to  mislead  the  judge 
or  jury  by  any  artifice  or  false  statement  of  fact  or  laAV ; 

I  will  maintain  the  confidence  and  preserve  inviolate 
the  secrets  of  my  client,  and  will  accept  no  compensation 
in  connection  with  his  business  except  from  him  or  with 
his  knowledge   and  approval ; 

I  will  abstain  from  all  offensive  personality,  and  advance 
no  fact  prejudicial  to  the  honor  or  reputation  of  a  party 
or  witness,  unless  required  by  the  justice  of  the  cause 
with  which  I  am  charged ; 

I  Avill  never  reject,  from  any  consideration  personal  to 
myself,  the  cause  of  the  defenseless  or  oppressed,  or  delay 
any  man's  cause  for  lucre  or  malice.     SO  HELP  ME  GOD. 

We  commend  this  form  of  oath  for  adoption  by  the 
proper  authorities  in  all  states  and  territories. 


APPENDIX  F. 


UNIFORM    SALES   ACT. 

PART  I. 

FORMATION  OF  THE  CONTRACT. 

Section  1. — Contracts  to  Sell  and  Sales. 

(1.)  A  contract  to  sell  goods  is  a  contract  whereby  the 
seller  agrees  to  transfer  the  property  in  goods  to  the  buyer 
for  a  consideration  called  the  price. 

(2.)  A  sale  of  goods  is  an  agreement  whereby  the  seller 
transfers  the  property  in  goods  to  the  buyer  for  a  considera- 
tion called  the  price. 

(3.)  A  contract  to  sell  or  a  sale  may  be  absolute  or  condi- 
tional. 

(4.)  There  may  be  a  contract  to  sell  or  a  sale  between 
one  part  owner  and  another. 

Section  2.     Capacity — Liabilities  for  Necessaries. 

Capacity  to  buy  and  sell  is  regulated  by  the  general  law 
concerning  capacity  to  contract,  and  to  transfer  and  acquire 
property. 

Where  necessaries  are  sold  and  delivered  to  an  infant  or  to 
a  person  who  by  reason  of  mental  incapacity  or  drunkenness 
is  incompetent  to  contract,  he  mu.3t  pay  a  reasonable  price 
therefor. 

Necessaries  in  this  section  mean  goods  suitable  to  the  con- 
dition in  life  of  such  infant  or  other  person,  and  to  his  actual 
requirements  at  the  time  of  delivery. 

Formalities  of  the  Contract. 
Section  3.    Form  of  Contract  or  Sale. 
Subject  to  the  provisions  of  this  act  and  of  any  statute  in 
that  behalf,  a  contract  to  sell  or  a  sale  may  be  made  in  writ- 

449 


450  putney's    liAll    EXAMIXATIUN    HLVIEW 

ing  (cither  with  or  without  scalj,  or  by  word  of  mouth,  or 
partly  in  writing  and  partly  by  word  of  mouth,  or  may  be 
inferred  from  th''  conduct  of  the  parties. 
Section  4.    Statute  of  Frauds. 

(1.)  A  contract  to  sell  or  a  sale  of  any  goods  or  choses 
in  action  of  the  value  of  five  hundred  dollars  or  upwards 
shall  not  be  enforceable  by  action  unless  the  buyer  shall  ac- 
cept part  of  the  goods  or  choses  in  action  so  contracted  to  be 
sold  or  sold,  and  actually  receive  the  same,  or  give  something 
in  earnest  to  bind  the  contract,  or  in  part  payment,  or  unless 
some  note  or  memorandum  in  writing  of  the  contract  or  sale 
be  signed  by  the  party  to  be  charged  or  his  agent  in  that 
behalf. 

(2.)  The  provisions  of  this  section  apply  to  every  such 
contract  or  sale,  notwithstanding  that  the  goods  may  be  in- 
tended to  be  delivered  at  some  future  time  or  may  not  at  the 
time  of  such  contract  or  sale  be  actually  made,  procured,  or 
provided,  or  fit  or  ready  for  delivery,  or  some  act  may  be 
requisite  for  the  making  or  completing  thereof,  or  rendering 
the  same  fit  for  delivery;  but  if  the  goods  are  to  be  manu- 
factured by  the  seller  especially  for  the  buyer  and  are  not 
suitable  for  sale  to  others  in  the  ordinary  course  of  the  seller's 
business,  the  provisions  of  this  section  shall  not  apply. 

(3.)  There  is  an  acceptance  of  goods  within  the  meaning 
of  this  section  when  the  buyer,  either  before  or  after  delivery 
of  the  goods,  expresses  by  words  or  conduct  his  assent  to 
becoming  the  owner  of  those  specific  sroods. 

Subject  Matter  of  Contract. 
Section  5.    Existing  and  Future  Goods. 

(1.)  The  goods  which  form  the  subject  of  a  contract  to 
sell  may  be  either  existing  goods,  owned  or  possessed  by  the 
seller,  or  goods  to  be  manufactured  or  acquired  by  the  seller 
after  the  making  of  the  contract  to  sell,  in  this  act  called 
"future  goods." 

(2.)  There  may  be  a  contract  to  sell  goods,  the  acquisition 
of  which  by  the  seller  depends  upon  a  contingency  which  may 
or  may  not  happen. 


APPENDIX    F 


451 


(3.)  Where  the  parties  purport  to  effect  a  present  sale  of 
future  goods,  the  agreement  operates  as  a  contract  to  sell  the 
goods. 

Section  6.    Undivided  Shares. 

(1.)  There  may  be  a  contract  to  sell  or  a  sale  of  an  un- 
divided share  of  goods.  If  the  parties  intend  to  effect  a  pres- 
ent sale,  the  buyer,  by  force  of  the  agreement,  becomes  an 
owner  in  common  with  the  owner  or  owners  of  the  remaining 

shares. 

(2.)     In  the  case  of  fungible  goods,  there  may  be  a  sale  of 
an  undivided  share  of  a  specific  mass,  though  the  seller  pur- 
ports to  sell  and  the  buyer  to  buy  a  definite  number,  weight 
or  measure  of  the  goods  in  the  mass,  and  though  the  number, 
weight  or  measure  of  the  goods  in  the  mass  is  undetermined. 
By  such  a  sale  the  buyer  becomes  owner  in  common  of  such  a 
share  of  the  mass  as  the  number,  weight  or  measure  bought 
bears  to  the  number,  weight  or  measure  of  the  mass.     If  the 
mass   contains  less   than  the  number,   weight   or  measure, 
bought,  the  buyer  becomes  the  owner  of  the  whole  mass  and 
the  seller  is  bound  to  make  good  the  deficiency  from  similar 
goods  unless  a  contrary  intent  appears. 
Section  7.    Destruction  of  Goods  Sold. 
(1.)     Where  the  parties  purport  to  sell  specific  goods,  and 
the  goods  without  the  knowledge  of  the  seller  have  wholly 
perished  at  the  time  when  the  agreement  is  made,  the  agree- 
ment is  void. 

(2.)  Where  the  parties  purport  to  sell  specific  goods,  and 
the  goods  without  the  knowledge  of  the  seller  have  perished 
in  part  or  have  wholly  or  in  a  material  part  so  deteriorated  in 
quality  as  to  be  substantially  changed  in  character,  the  buyer 
may  at  his  option  treat  the  sale — 
(a.)     As  avoided,  or 

(b.)  As  transferring  the  property  in  all  of  the  existing 
goods  or  in  so  much  thereof  as  have  not  deteriorated,  and  as 
binding  the  buyer  to  pay  the  full  agreed  price  if  the  sale  was 
indivisible,  or  to  pay  the  agreed  price  for  the  goods  in  which 
the  property  passes  if  the  sale  was  divisible. 


452  pl'tnky's  mau  kx aminamon  kkvikw 

Section  8.    Destruction  of  Goods  Contracted  to  be  Sold. 

(1.)  Wlu'iT  tlitTL'  is  a  contract  to  sell  specific  tjoods.  aiwl 
subsequently,  but  before  th''  risk  passes  to  the  buyer,  without 
any  fault  on  the  part  of  the  seller  or  the  l)uyer.  the  jjoods 
wholly  perish,  the  contract  is  thereby  avoiiled. 

(2.)  Where  there  is  a  contract  to  sell  speeitic  goods,  and 
subsetpiently,  but  l)efore  the  risk  passes  to  the  buyer,  with- 
out any  fault  of  the  seller  or  the  buyer,  part  of  the  jroods 
perish  or  the  whole  or  a  material  part  of  the  poods  so  deterior- 
ate in  quality  as  to  be  substantially  ehanj:ed  in  character,  the 
buyer  may  at  his  option  treat  the  contract — 

(a.)     As  avoided,  or 

(b.)  As  bindiiii.'  the  seller  to  transfer  the  property  in  all 
of  the  existinir  ^'(.ods  or  in  so  much  thereof  as  have  not  di'- 
teriorated,  ami  as  bindin-.'  the  buyer  to  pay  the  full  au'reed 
price  if  the  contract  was  indivisible,  or  to  pay  the  afzreed 
price  for  .so  nuich  of  the  sroods  as  the  seller,  by  the  buyer's 
option,  is  bound  to  transfer  if  the  contract  was  divisible. 

The  Price. 

Section  9.    Definition  and  Ascertainment  of  Price. 

(1.)  The  price  may  be  fixed  by  th>'  contract,  or  may  be  left 
to  be  fixed  in  such  manner  as  may  be  agreed,  or  it  may  be 
determined  by  the  course  of  dealing  between  the  parties. 

(2.)  The  price  may  be  made  payable  in  any  personal  prop- 
erty. 

(3.)  Where  transferring  or  promising:  to  tran.sfer  any  in- 
terest in  real  estate  constitutes  the  whole  or  part  of  the  con- 
sideration for  transferrino-  or  for  promising  to  transfer  the 
property  in  goods,  this  act  shall  not  apply. 

(4.)  Where  the  price  is  not  determined  in  accordance  with 
the  foregoing  provisions  the  buyer  must  pay  a  reasonable 
price.  W^hat  is  a  reasonable  price  is  a  question  of  fact  de- 
pendent on  the  circumstances  of  each  particular  case. 

Section  10.     Sale  at  a  Valuation, 

(1.)  Where  there  is  a  contract  to  sell  or  a  sale  of  goods 
at  a  price  on  or  terms  to  be  fixed  by  a  third  person,  and  such 
third  person  without  fault  of  the  seller  or  the  buyer,  cannot 


APPENDIX    F  453 

or  does  iK)t  fix  the  price  or  terms,  the  contract  or  tlie  sale  is 
thereby  avoided ;  but  if  the  goods  or  any  part  thereof  have 
been  delivered  to  and  appropriated  by  the  buyer  he  must 
pay  a  reasonable  price  therefor. 

(2.)  Where  such  third  person  is  prevented  from  fixing 
the  price  or  terms  by  fault  of  the  seller  or  the  buyer,  the 
party  not  in  fault  may  have  such  remedies  against  the  party 
in  fault  as  are  allowed  by  Parts  IV  and  V  of  this  act. 

Conditions  and  Warranties. 

Section  11.    Effect  of  Conditions. 

(1.)  Where  the  obligation  of  either  party  to  a  contract 
to  sell  or  a  sale  is  subject  to  any  condition  which  is  not  per- 
formed, such  party  may  refuse  to  proceed  with  the  contract 
or  sale  or  he  may  waive  performance  of  the  condition.  If 
the  other  party  has  promised  that  the  condition  should  hap- 
pen or  be  performed,  such  first  mentioned  party  may  also 
treat  the  non-performance  of  the  condition  as  a  breach  of 
warranty. 

(2.)  Where  the  property  in  the  goods  has  not  passed,  the 
buyer  may  treat  the  fulfillment  by  the  seller  of  his  obligation 
to  furnish  goods  as  described  and  as  warranted  expressly  or 
by  implication  in  the  contract  to  sell  as  a  condition  of  the 
obligation  of  the  buyer  to  perform  his  promise  to  accept  and 
pay  for  the  goods. 

Section  12.     Definition  of  Express  Warranty. 

Any  affirmation  of  fact  or  any  promise  by  the  seller  relat- 
ing to  the  goods  is  an  express  warranty  if  the  natural  ten- 
dency of  such  affirmation  or  promise  is  to  induce  the  buyer 
to  purchase  the  goods,  and  if  the  buyer  purchases  the  goods 
relying  thereon.  No  affirmation  of  the  value  of  the  goods, 
nor  any  statement  purporting  to  be  a  statement  of  the  seller's 
opinion  only  shall  bo  eonstnuHl  ;is  a  warranty. 

Section  13.     Implied  Warranties  of  Title. 

In  a  contract  to  sell  or  a  sale,  unless  a  contrary  intention 
appears,  there  is — 

(1.)  An  implied  warranty  on  the  part  of  the  seller  that 
in  case  of  a  sale  he  has  a  right  to  sell  the  goods,  and  that  in 


454  I'LTNKV'.S    HAK    KX  AMIN  Al  I«  )N    liLVlKW 

case  of  a  contract  to  sell  he  will  have  a  ri^'lit  to  sell  the  ^oods 
at  the  time  when  the  property  is  to  pass; 

(2.)  An  implied  warranty  that  the  buyer  shall  have  and 
enjoy  quiet  possession  of  the  goods  as  against  any  lawful 
claims  existing:  at  the  time  of  the  sale; 

(3.)  An  implied  warranty  that  the  goods  shall  he  free  at 
the  time  of  the  sale  from  any  charge  <>r  encumbrance  in 
favor  of  any  third  person,  not  deelaretl  or  known  to  the  buyer 
before  or  at  the  time  Avhen  the  eoiitniet  or  sale  is  made. 

(4.)  This  section  shall  not,  however,  be  held  to  render 
liable  a  sheritf,  auctioneer,  mortgagee,  or  other  jx-rson  pro- 
fessing to  sell  by  virtue  of  authority  in  fact  or  law  goods  in 
which  a  third  person  has  a  legal  or  equitable  interest. 

Section  14.     Implied  Warranty  in  Sale  by  Description. 

Where  there  is  a  cuntraet  to  sell  or  a  sale  of  goods  by  de- 
scription, there  is  an  implied  warranty  that  the  goods  shall 
correspond  with  the  description  and  if  the  contract  or  sale 
be  by  sample,  as  well  as  by  description,  it  is  not  suflficient  that 
the  bulk  of  the  goods  corresponds  with  the  sample  if  the 
goods  do  not  also  correspond  with  the  description. 

Section  15.     Implied  Warranties  of  Quality. 

Subject  to  the  provisions  of  this  act  and  of  Any  statute  in 
that  behalf,  there  is  no  implied  warranty  or  condition  as  to 
the  quality  or  fitness  for  any  particular  purpose  of  goods 
supplied  under  a  contract  to  sell  or  a  sale,  except  as  follows : 

(1.)  Where  the  buyer,  expressly  or  by  implication,  makes 
known  to  the  seller  the  particular  purpose  for  which  the  goods 
are  required,  and  it  appears  that  the  buyer  relies  on  the 
seller's  skill  or  judgment  (w'hether  he  be  the  grower  or  manu- 
facturer or  not),  there  is  an  implied  warranty  that  the  goods 
shall  be  reasonably  fit  for  such  purpose. 

(2.)  Where  the  goods  are  bought  by  description  from  a 
seller  who  deals  in  goods  of  that  description  (whether  he  be 
the  grow-er  or  manufacturer  or  not),  there  is  an  implied  war- 
ranty that  the  goods  shall  be  of  merchantable  quality. 

(3.)  If  the  buyer  has  examined  the  goods,  there  is  no  im- 
plied warranty  as  regards  defects  which  such  examination 
ought  to  have  rcA'^ealed. 


APPENDIX    F  455 

(4.)  In  the  case  of  a  contract  to  sell  or  a  sale  of  a  spe- 
cified article  under  its  patent  or  other  trade  name,  there  is  no 
implied  warranty  as  to  its  fitness  for  any  particular  purpose. 

(5.)  An  implied  Avarranty  or  condition  as  to  quality  or 
fitness  for  a  particular  purpose  may  be  annexed  by  the  usage 
of  trade. 

(6.)  An  express  warranty  or  condition  does  not  negative 
a  warranty  or  condition  implied  under  this  act  unless  incon- 
sistent therewith. 

Sale  by  Sample. 

Section  16.     Implied  Warranties  in  Sale  by  Sample. 

In  the  case  of  a  contract  to  sell  or  a  sale  by  sample : 

(a.)  There  is  an  implied  warranty  that  the  bulk  shall  cor- 
respond Avith  the  sample  in  quality. 

(b.)  There  is  an  implied  warranty  that  the  buyer  shall 
have  a  reasonable  opportunity  of  comparing  the  bulk  with 
the  sample,  except  so  far  as  otherwise  provided  in  section 
47  (3). 

(c.)  If  the  seller  is  a  dealer  in  goods  of  that  kind,  there 
is  an  implied  warranty  that  the  goods  shall  be  free  from  any 
defect  rendering  them  unmerchantable  which  would  not  be 
apparent  on  reasonable  examination  of  the  sample. 


PART  II. 

TRANSFER  OF  PROPERTY  AS  BETWEEN  SELLER  AND 

BUYER. 

Section  17.  No  Property  Passes  Until  Goods  Are  Ascer- 
tained. 

Where  there  is  a  contract  to  sell  unascertained  goods  no 
property  in  the  goods  is  transferred  to  the  buyer  unless  and 
until  the  goods  are  ascertained,  but  property  in  an  undivided 
share  of  ascertained  goods  may  be  transferred  as  provided  in 
section  6. 

Section  18.  Property  in  Specific  Goods  Passes  When  Par- 
ties so  Intend. 

(1.)   Where  there  is  a  eontract  to  sell  specific  or  ascertained 


456  putney's  bar  examination  review 

goods,  the  property  iii  tliuiu  is  traiisi'LTred  lu  llie  buyer  at 
such  time  as  the  parties  to  the  contract  intend  it  to  be  trans- 
ferred. 

(2.)  For  the  purpose  of  ascertaining  the  intention  of  the 
parties,  regard  shall  be  had  to  the  terms  of  the  contract,  the 
conduct  of  the  parties,  usages  of  trade  and  the  circumstances 
of  the  case. 

Section  19.    Rules  for  Ascertaining  Intention. 

Unless  a  different  intention  appears,  the  following  are  rules 
for  ascertaining  the  intention  of  tiie  parties  as  to  the  time  at 
which  the  property-  in  the  goods  is  to  pass  to  the  buyer. 

Rule  1.  Where  there  is  an  unconditional  contract  to  sell 
specific  goods,  in  ?  deliverable  state,  the  property  in  the  goods 
passes  to  the  buyer  when  the  contract  is  made  and  it  is  im- 
material whether  the  time  of  payment,  or  the  time  of  delivery, 
or  both,  be  postponed. 

Rule  2.  Where  there  is  a  contract  to  sell  specific  goods 
and  the  seller  is  bound  to  do  something  to  the  goods,  for  the 
purpose  of  putting  them  into  a  deliverable  state,  the  prop- 
erty does  not  pass  until  such  thing  be  done. 

Rule  3.  (1.)  When  goods  are  delivered  to  the  buyer  "on 
sale  or  return,"  or  on  other  terms  indicating  an  intention  to 
make  a  present  sale,  but  to  give  the  buyer  an  option  to  return 
the  goods  instead  of  paying  the  price,  the  property  passes 
to  the  buyer  on  delivery,  but  he  may  revest  the  property  in 
the  seller  by  returning  or  tendering  the  goods  within  the 
time  fixed  in  the  contract,  or,  if  no  time  has  been  fixed,  within 
a  reasonable  time. 

(2.)  When  goods  are  delivered  to  the  buyer  on  approval 
or  on  trial  or  on  satisfaction,  or  other  similar  terms,  the  prop- 
erty therein  passes  to  the  buyer — 

(a.)  When  he  signifies  his  approval  or  acceptance  to  the 
seller  or  does  any  other  act  adopting  the  transaction ; 

(b.)  If  he  does  not  signify  his  approval  or  acceptance  to 
the  seller,  but  retains  the  goods  without  giving  notice  of  re- 
jection, then  if  a  time  has  been  fixed  for  the  return  of  the 
goods,  on  the  expiration  of  such  time,  and,  if  no  time  has 


APPENDIX    F  457 

been  fixed,  on  the  expiration  of  a  reasonable  time.     What  is 
a  reasonable  time  is  a  question  of  fact. 

Rule  4.  (1.)  Where  there  is  a  contract  to  sell  unascer- 
tained or  future  goods  by  description,  and  goods  of  that  de- 
scription and  in  a  deliverable  state  are  unconditionally  appro- 
priated to  the  contract,  either  by  the  seller  with  the  assent 
of  the  buyer,  or  by  the  buyer  with  the  assent  of  the  seller, 
the  property  in  the  goods  thereupon  passes  to  the  buyer. 
Such  assent  may  be  expressed  or  implied,  and  may  be  given 
either  before  or  after  the  appropriation  is  made. 

(2.)  Where,  in  pursuance  of  a  contract  to  sell,  the  seller 
delivers  the  goods  to  the  buyer,  or  to  a  carrier  or  other  bailee 
(whether  named  by  the  buyer  or  not)  for  the  purpose  of 
transmission  to  or  holding  for  the  buyer,  he  is  presumed  to 
have  unconditionally  appropriated  the  goods  to  the  contract, 
except  in  the  cases  provided  for  in  the  next  rule  and  in  sec- 
tion 20.  This  presumption  is  applicable,  although  by  the 
terms  of  the  contract,  the  buyer  is  to  pay  the  price  before 
receiving  delivery  of  the  goods,  and  the  goods  are  marked 
with  the  words  "collect  on  delivery"  or  their  equivalents. 

Rule  5.  If  the  contract  to  sell  requires  the  seller  to  deliver" 
the  goods  to  the  buyer,  or  at  a  particular  place,  or  to  pay  the 
freight  or  cost  of  transportation  to  the  buyer,  or  to  a  par- 
ticular place,  the  property  does  not  pass  until  the  goods  have 
been  delivered  to  the  buyer  or  reached  the  place  agreed 
upon. 

Section  20.  Reservation  of  Right  of  Possession  or  Property 
When  Goods  Are  Shipped. 

(1.)  Where  there  is  a  contract  to  sell  specific  goods,  or 
where  goods  are  subsequently  appropriated  to  the  contract, 
the  seller  may,  by  the  terms  of  the  contract  or  appropriation, 
reserve  the  right  of  possession  or  property  in  the  goods  until 
certain  conditions  have  been  fulfilled.  The  right  of  posses- 
sion  or  property  may  be  thus  reserved  notwithstanding  the 
delivery  of  the  goods  to  the  buyer  or  to  a  carrier  or  other 
bailee  for  the  purpose  of  transmission  to  the  buyer. 

(2.)     Where  goods  are  shipped,  and  by  the  bill  of  lading 


458  putney's    liAlt    EXAMINATION    IthVIKW 

tlie  goods  are  deliverabJe  to  the  .seller  or  his  agent,  or  to  tin- 
order  of  the  seller  or  of  his  agent,  the  seller  thereby  reserves 
the  property  in  the  goods.  But  it",  exeej)t  for  the  form  of 
the  bill  of  lading,  the  property  would  have  passed  to  the  buyer 
on  shipment  of  the  goods,  the  seller's  property  in  the  goods 
shall  be  deemed  to  be  only  for  the  purpose  of  seeuring  per- 
formance by  the  buyer  of  his  obligations  under  the  contraet. 

(3.)  Where  goods  are  shipped,  and  by  the  bill  of  lading 
the  goods  are  deliverable  to  the  order  of  the  buyer  or  of  his 
agent,  but  possession  of  the  bill  of  lading  is  retained  by  the 
seller  or  his  agent,  the  seller  thereby  reserves  a  right  to  the 
possession  of  the  goods  as  against  the  buyer. 

(4.)  Where  the  seller  of  goods  draws  on  the  buyer  for 
the  price  and  transmits  the  bill  of  exehange  and  bill  of  lading 
together  to  the  buyer  to  secure  acceptance  or  payment  of 
the  bill  of  exchange,  the  buyer  is  bound  to  return  the  bill 
of  lading  if  he  does  not  honor  the  bill  of  exchange,  and  if  he 
wrongfully  retains  the  bill  of  lading  he  acquires  no  added 
right  thereby.  If,  however,  the  bill  of  lading  provides  that 
the  goods  are  deliverable  to  the  buyer  or  to  the  order  of  the 
buyer,  or  is  indorsed  in  blank,  or  to  the  buyer  by  the  con- 
signee named  therein,  one  who  purchases  in  good  faith,  for 
value,  the  bill  of  lading,  or  goods  from  the  buyer  will  obtain 
the  property  in  the  goods,  although  the  bill  of  exchange  has 
not  been  honored,  provided  that  such  purchaser  has  received 
delivery  of  the  bill  of  lading  indorsed  by  the  consignee  named 
therein,  or  of  the  goods,  without  notice  of  the  facts  making 
the  transfer  wrongful. 

Section  21.    Sale  by  Auction. 

In  the  case  of  sale  by  auction — 

(1.)  Where  goods  are  put  up  for  sale  by  auction  in  lots, 
each  lot  is  the  subject  of  a  seperate  contract  of  sale. 

(2.)  A  sale  by  auction  is  complete  when  the  auctioneer  an- 
nounces its  completion  by  the  fall  of  the  hammer,  or  in  other 
customary  manner.  Until  such  announcement  is  made,  any 
bidder  may  retract  his  bid ;  and  the  auctioneer  may  withdraw 
the  goods  from  sale  unless  the  auction  has  been  announced  to 
be  without  reserve. 


APPENDIX    F  4o9 

(3.)  A  right  to  bid  may  be  reserved  expressly  by  or  on 
behalf  of  the  seller. 

(4.)  Where  notice  has  not  been  given  that  a  sale  by  auc- 
tion is  subject  to  a  right  to  bid  on  behalf  of  the  seller,  it  shall 
not  be  lawful  for  the  seller  to  bid  himself  or  to  employ  or  in- 
duce any  person  to  bid  at  such  sale  on  his  behalf,  or  for  the 
auctioneer  to  employ  or  induce  any  person  to  bid  at  such 
sale  on  behalf  of  the  seller  or  knowingly  to  take  any  bid  from 
the  seller  or  any  person  employed  by  him.  Any  sale  contra- 
vening this  rule  may  be  treated  as  fraudulent  by  the  buyer. 

Section  22.    Risk  of  Loss. 

Unless  otherwise  agreed,  the  goods  remain  at  the  seller's 
risk  until  the  property  therein  is  transferred  to  the  buyer, 
but  when  the  property  therein  is  transferred  to  the  buyer  the 
goods  are  at  the  buyer's  risk  whether  delivery  has  been  made 
or  not,  except  that — 

(a.)  Where  delivery  of  the  goods  has  been  made  to  the 
buyer,  or  to  a  bailee  for  the  buyer,  in  pursuance  of  the  con- 
tract and  the  property  in  the  goods  has  been  retained  by 
the  seller  merely  to  secure  performance  by  the  buyer  of  his 
obligations  under  the  contract,  the  goods  are  at  the  buyer's 
risk  from  the  time  of  such  delivery. 

(b.)  Where  delivery  has  been  delayed  through  the  fault 
of  either  buyer  or  seller  the  goods  are  at  the  risk  of  the  party 
in  fault  as  regards  any  loss  which  might  not  have  occurred 
but  for  such  fault. 

Transfer  of  Title. 

Section  23.     Sale  by  a  Person  Not  the  Owner. 

(1.)  Subject  to  the  provisions  of  this  act,  where  goods  are 
sold  by  a  person  who  is  not  the  o^^^ler  thereof,  and  who  does 
not  sell  them  under  the  authority  or  with  the  consent  of  the 
owner,  the  buyer  acquires  no  better  title  to  the  goods  than  the 
seller  had,  unless  the  owner  of  the  goods  is  by  his  conduct 
precluded  from  denying  the  seller's  authority  to  sell. 

(2.)     Nothing  in  this  act,  however,  shall  affect — 

(a.)  The  provisions  of  any  factors'  acts,  recording  acts, 
or  any  enactment  enabling  the  apparent  owner  of  goods  to 
dispose  of  them  as  if  he  were  the  true  owner  thereof. 


460  putney's  uak  examination  hkvikw 

(b.)  The  validity  of  any  contract  to  sell  or  sale  under  any 
special  common  law  or  statutory  power  of  sale  or  umler  tin- 
order  of  a  court  of  competent  jurisdiction. 

Section  24.     Sale  by  One  Having  a  Voidable  Title. 

Where  the  seller  of  ^oods  has  ;i  voidahU'  title  thereto,  l)ut 
his  title  has  not  been  avoided  at  the  time  of  the  sale,  the  buyer 
acquires  a  good  title  to  the  goods,  provitled  he  buys  them  in 
good  faith,  for  value,  and  without  notice  of  the  seller's  defect 
of  title. 

Section  25.  Sale  by  Seller  in  Possession  of  Goods  Already 
Sold. 

Where  a  person  having  sold  goods  continues  in  possession 
of  the  goods,  or  of  negotiable  documents  of  title  to  the  good.s. 
the  delivery  or  transfer  by  that  person,  or  by  any  agent  acting 
for  him,  of  the  goods  or  documents  of  title  under  any  sale, 
pledge  or  other  disposition  thereof,  to  any  person  reeeivinu 
and  paying  value  for  the  same  in  good  faith  and  without  no- 
tice of  the  previous  sale,  shall  have  the  same  effect  as  if  the 
person  making  the  delivery  oi  transfer  were  expressly  author- 
ized by  tlie  owner   of  the  goods  to  Tnala^  the  same. 

Section  26.  Creditors '  Rights  Against  Sold  Goods  in  Sell- 
er's  Possession. 

Where  a  person  having  sold  goods  continues  in  possession 
of  the  goods,  or  of  negotiable  documents  of  title  to  the  goods 
and  such  retention  of  possession  is  fraudulent  in  fact  or  is 
deemed  fraudulent  under  any  rule  of  law,  a  creditor  or  cred- 
itors of  the  seller  may  treat  the  sale  as  void. 

Section  27.    Definition  of  Negotiable  Documents  of  Title. 

A  document  of  title  in  which  it  is  stated  that  the  goods  re- 
ferred to  therein  will  be  delivered  to  the  bearer,  or  to  the 
order  of  any  person  named  in  such  document  is  a  negotiable 
document  of  title. 

Section  28.  Negotiation  of  Negotiable  Documents  by  De- 
livery. 

A  negotiable  document  of  title  may  be  negotiated  by  de- 
livery,— 

(a.)     Where  by  the  terms  of  the  document  the  carrier, 


APPENDIX    F  461 

warehouseinan  ur  other  bailee  issuing  the  same  undertakes  td 
deliver  the  goods  to  the  bearer,  or 

(b.)  Where  by  the  terms  of  the  document  the  carrier, 
warehouseman  or  other  bailee  issuing  the  same  undertakes  to 
deliver  the  goods  to  the  order  of  a  specified  person,  and  such 
person  or  a  subsequent  indorsee  of  the  document  has  indorsed 
it  in  blank  or  to  bearer. 

Wliere  by  the  terms  of  a  negotiable  document  of  title  the 
goods  are  deliverable  to  bearer  or  where  a  negotiable  docu- 
ment of  title  has  been  indorsed  in  blank  or  to  bearer,  any 
holder  may  indorse  the  same  to  himself  or  to  any  other 
specified  person,  and  in  such  case  the  document  shall  there- 
after be  negotiated  only  by  the  indorsement  of  such  indorsee. 

Section  29.  Negotiation  of  Negotiable  Documents  by  In- 
dorsement. 

A  negotiable  document  of  title  may  be  negotiated  by  the 
indorsement  of  the  person  to  whose  order  the  goods  are  by 
the  terms  of  the  document  deliverable.  Such  indorsement 
may  be  in  blank,  to  bearer  or  to  a  specified  person.  If  in- 
dorsed to  a  specified  person,  it  may  be  again  negotiated  by  the 
indorsement  of  such  person  in  blank,  to  bearer  or  to  another 
specified  person.  Subsequent  negotiation  may  be  made  in 
like  manner. 

Section  30.  Negotiable  Documents  of  Title  Marked  "Not 
Negotiable. ' ' 

If  a  document  of  title  which  contains  an  undertaking  by  a 
carrier,  warehouseman  or  other  bailee  to  deliver  the  goods 
to  the  bearer,  to  a  specified  person  or  order,  or  to  the  order  of 
a  specified  person,  or  which  contains  words  of  like  import, 
has  placed  upon  it  the  words  "not  negotiable,"  "non-nego- 
tiable" or  the  like,  such  a  document  may  nevertheless  be 
negotiated  by  the  holder  and  is  a  negotiable  document  of 
title  within  the  mean  of  this  act.  But  nothing  in  this  act 
contained  shall  be  construed  as  limiting  or  defining  the  effect 
upon  the  obligations  of  the  carrier,  warehouseman,  or  other 
bailee  issuing  a  document  of  title  of  placing  thereon  the 
words  "not  negotiable,"  "non-negotiable,"  or  the  like. 


462  putney's    liAll    EXAAUNATlUN    UEVIKVV 

Section  31.     Transfer  of  Non-Negotiable  Documents. 

A  document  of  title  which  is  not  in  sucli  I'onu  that  it  can 
be  negotiated  by  delivery  may  be  transferred  by  the  holder 
by  delivery  to  a  purchaser  or  donee.  A  non-negotiable  docu- 
ment cannot  be  negotiated  and  the  indorsement  of  such  a 
document  gives  the  tran.sferee  no  additional  right. 

Section  32.     Who  May  Negotiate  a  Document. 

A  negotiable  document  of  title  may  be  negotiated — 

(a.)     By  the  owner  thereof,  or 

(b.)  By  any  person  to  whom  the  possession  or  custody  of 
the  document  has  been  entrusted  by  the  owner,  if,  by  the 
terms  of  the  document  the  bailee  issuing  the  document  un- 
dertakes to  deliver  the  goods  to  the  order  of  the  person  to 
whom  the  possession  or  custody  of  the  documt'nt  has  been 
entrusted,  or  if  at  the  time  of  such  entrusting  the  document 
is  in  such  form  that  it  may  be  negotiated  by  delivery. 

Section  33.  Rights  of  Person  to  Whom  Document  Has 
Been  Negotiated. 

A  person  to  whom  a  negotiable  document  of  title  has  been 
duly  negotiated  acquires  thereby, 

(a.)  Such  title  to  the  goods  as  the  person  negotiating  the 
document  to  him  had  or  had  ability  to  convey  to  a  purchaser 
in  good  faith  for  value  and  also  such  title  to  the  goods  as  the 
person  to  whose  order  the  goods  were  to  be  delivered  by  the 
terms  of  the  document  had  or  had  ability  to  convey  to  a  pur- 
chaser in  good  faith  for  value,  and 

(b.)  The  direct  obligation  of  the  bailee  issuing  the  docu- 
ment to  hold  possession  of  the  goods  for  him  according  to  the 
terms  of  the  document  as  fully  as  if  such  l)ailee  had  contracted 
directly  with  him. 

Section  34.  Rights  of  Person  to  Whom  Document  Has 
Been  Transferred. 

A  person  to  whom  a  document  of  title  has  been  trans- 
ferred, but  not  negotiated,  acquires  thereby,  as  against  the 
transferor,  the  title  to  the  goods,  subject  to  the  terms  of  any 
agreement  with  the  transferor. 

If  the  document  is  non-negotiable,  such  person  also  ac- 


APPENDIX    F  463 

quires  the  right  to  notify  the  bailee  who  issued  the  document 
of  the  transfer  thereof,  and  thereby  to  acquire  the  direct 
obligation  of  such  bailee  to  hold  possession  of  the  goods  for 
him  according  to  the  terms  of  the  document. 

Prior  to  the  notification  of  such  bailee  by  the  transferor 
or  transferee  of  a  non-negotiable  document  of  title,  the  title 
of  the  transferee  to  the  goods  and  the  right  to  acquire  the 
obligation  of  such  bailee  may  be  defeated  by  the  levy  of  an 
attachment  or  execution  upon  the  goods  by  a  creditor  of  the 
transferor,  or  by  a  notification  to  such  bailee  by  the  trans- 
feror or  a  subsequent  purchaser  from  the  transferor  of  a 
subsequent  sale  of  the  goods  by  the  transferor. 

Section  35. — Transfer  of  Negotiable  Document  Without 
Indorsement. 

Where  a  negotiable  document  of  title  is  transferred  for 
value  by  delivery,  and  the  indorsement  of  the  transferor 
is  essential  for  negotiation,  the  transferee  acquires  a  right 
against  the  transferor  to  compel  him  to  indorse  the  document 
unless  a  contrary  intention  appears.  The  negotiation  shall 
take  effect  as  of  the  time  when  the  indorsement  is  actually 
made. 

Section  36.    Warranties  on  Sale  of  Document. 

A  person  who  for  value  negotiates  or  transfers  a  document 
of  title  by  indorsement  or  delivery,  including  one  who  as- 
signs for  value  a  claim  secured  by  a  document  of  title  unless 
a  contrary  intention  appears,  warrants : 

(a.)     That  the  document  is  genuine; 

(b.)     That  he  has  a  legal  right  to  negotiate  or  transfer  it; 

(c.)  That  he  has  knowledge  of  no  fact  which  would  im- 
pair the  validit}^  or  worth  of  the  document,  and 

(d.)  That  he  has  a  right  to  transfer  the  title  to  the  goods, 
and  that  the  goods  are  merchantable  or  fit  for  a  particular 
purpose,  whenever  such  warranties  would  have  been  implied 
if  the  contract  of  the  parties  had  been  to  transfer  without  a 
document  of  title  the  goods  represented  thereby. 

Section  37.     Indorser  Not  a  Guarantor. 

The  indorsement  of  a  document  of  title  shall  not  make  the 


464  putney's  bah  examination  review 

indorser  liable  for  any  failure  on  the  part  of  the  bailee  who 
issued  the  document  or  previous  indorsers  thereof  to  fulfil 
their  respective  obligations. 

Section  38.  When  Negotiation  Not  Impaired  by  Fraud, 
Mistake  or  Duress. 

The  validity  of  the  negotiation  of  a  negotiable  document  of 
title  is  not  impaired  by  the  fact  that  the  negotiation  was  a 
breach  of  duty  on  the  part  of  the  person  making  the  negotia- 
tion, or  by  the  fact  that  the  owner  of  the  document  was  in- 
duced by  fraud,  mistake  or  duress  to  entrust  the  possession 
or  custody  thereof  to  such  person,  if  the  person  to  whom  the 
document  was  negotiated  or  a  person  to  whom  the  document 
was  subsequently  negotiated  paid  value  therefor  without 
notice  of  the  breach  of  duty,  or  fraud,  mistake  or  duress. 

Section  39.  Attachment  or  Levy  Upon  Goods  for  Which  a 
Negotiable  Document  Has  Been  Issued. 

If  goods  are  delivered  to  a  bailee  by  the  owner  or  by  a  per- 
son w^hose  act  in  conveying  the  title  to  them  to  a  purchaser  in 
good  faith  for  value  would  bind  the  owner  and  a  negotiable 
document  of  title  is  issued  for  them  they  cannot  thereafter, 
while  in  the  possession  of  such  bailee,  be  attached  by  garnish- 
ment or  otherwise  or  be  levied  upon  under  an  execution  unless 
the  document  be  first  surrended  to  the  bailee  or  its  negotia- 
tion enjoined.  The  bail(>e  shall  in  no  case  be  compelled  to 
deliver  up  the  actual  possession  of  the  goods  until  the  docu- 
ment is  surrendered  to  him  or  impounded  by  the  court. 

Section  40.  Creditors'  Remedies  to  Reach  Negotiable 
Documents. 

A  creditor  whose  debtor  is  the  owner  of  a  negotiable  docu- 
ment of  title  shall  be  entitled  to  such  aid  from  courts  of  ap- 
propriate jurisdiction  by  injunction  and  otherwise  in  attach- 
ing such  document  or  in  satisfj^ing  the  claim  by  means  thereof 
as  is  allowed  at  law  or  in  equity  in  regard  to  property  which 
cannot  readily  be  attached  or  levied  upon  by  ordinary  legal 
process. 


APPENDIX  F  465 

PART  m. 
PERFORMANCE  OF  THE  CONTRACT. 

Section  41.    Seller  Must  Deliver  and  Buyer  Accept  Goods. 

It  is  the  duty  of  the  seller  to  deliver  the  goods,  and  of  the 
buyer  to  accept  and  pay  for  them,  in  accordance  with  the 
terms  of  the  contract  to  sell  or  sale. 

Section  42.  Delivery  and  Payment  Are  Concurrent  Con- 
ditions. 

Unless  otherwise  agreed,  delivery  of  the  goods  and  pay- 
ment of  the  price  are  concurrent  conditions;  that  is  to  say, 
the  seller  must  be  ready  and  willing  to  give  possession  of  the 
goods  to  the  buyer  in  exchange  for  the  price  and  the  buyer 
jiust  be  ready  and  willing  to  pay  the  price  in  exchange  for 
possession  of  the  goods. 

Section  43.    Place,  Time  and  Manner  of  Delivery. 

(1.)  Whether  it  is  for  the  buj^er  to  take  possession  of  the 
goods  or  for  the  seller  to  send  them  to  the  buyer  is  a  question 
depending  in  each  case  on  the  contract,  express  or  implied, 
between  the  parties.  Apart  from  any  such  contract,  express 
or  implied,  or  usage  of  trade  to  the  contrary,  the  place  of  de- 
livery is  the  seller's  place  of  business  if  he  have  one,  and  if 
not  his  residence ;  but  in  case  of  a  contract  to  sell  or  a  sale  of 
specific  goods,  which  to  the  knowledge  of  the  parties  when 
the  contract  or  the  sale  was  made  were  in  some  other  place, 
then  that  place  is  the  place  of  delivery. 

(2.)  Where  by  a  contract  to  sell  or  a  sale  the  seller  is 
bound  to  send  the  goods  to  the  buyer,  but  no  time  for  send- 
ing them  is  fixed,  the  seller  is  bound  to  send  them  within  a 
reasonable  time. 

(3.)  Where  the  goods  at  the  time  of  sale  are  in  the 
possession  of  a  third  person,  the  seller  has  not  fulfilled  his 
obligation  to  deliver  to  the  buyer  unless  and  until  such 
third  person  acknowledges  to  the  buyer  that  he  holds  the 
goods  on  the  buyer's  behalf;  but  as  against  all  others  than 
the  seller  the  buyer  shall  be  regarded  as  having  received  de- 
livery from  the  time  when  such  third  person  first  has  notice 


466  putney's  uak  examination  review 

of  the  sale.  Nothing  in  this  section,  liowever,  shall  affect  the 
operation  of  the  issue  or  transfer  of  any  document  of  title 
to  goods. 

(4.)  Demand  or  tender  of  delivery  may  be  treated  as  in- 
effectual unless  made  at  a  reasonable  hour.  What  is  a  rea- 
sonable hour  is  a  question  of  fact. 

(5.)  Unless  otherwise  agreed,  the  expenses  of  and  inci- 
dental to  putting  the  goods  into  a  deliverable  state  must  be 
borne  by  the  seller. 

Section  44.     Delivery  of  Wrong  Quantity. 

(1.)  AVhere  the  seller  delivers  to  the  buyer  a  quantity  of 
goods  less  than  he  contracted  to  sell,  the  buyer  may  reject 
them,  but  if  the  buyer  accepts  or  retains  the  goods  so  deliv- 
ered, knowing  that  the  seller  is  not  going  to  perform  the 
contract  in  full,  he  must  pay  for  them  at  the  contract  rate. 
If,  however,  the  buyer  has  used  or  disposed  of  the  goods  de- 
livered before  he  knows  that  the  seller  is  not  going  to  per- 
form his  contract  in  full,  the  buyer  shall  not  be  liable  for 
more  than  the  fair  value  to  him  o  fthe  goods  so  received. 

(2.)  Where  the  seller  delivers  to  the  buyer  a  quantity  of 
goods  larger  than  he  contracted  to  sell,  the  buyer  may  accept 
the  goods  included  in  the  contract  and  reject  the  rest,  or  he 
may  reject  the  wliole.  If  the  buyer  accepts  the  vi'hole  of  the 
goods  so  delivered  he  must  pay  for  them  at  the  contract  rate. 

(3.)  Where  the  seller  delivers  to  the  buyer  the  goods  he 
contracted  to  sell  mixed  with  goods  of  a  different  description 
not  included  in  the  contract,  the  buyer  may  accept  the  goods 
which  are  in  accordance  with  the  contract  and  reject  the  rest, 
or  he  may  reject  the  w'hole. 

(4.)  The  provisions  of  this  section  are  subject  to  any 
usage  of  trade,  special  agreement,  or  course  of  dealing  be- 
tween the  parties. 

Section  45.     Delivery  in  Instalments. 

(1.)  Unless  otherwise  agreed,  the  buyer  of  goods  is  not 
bound  to  accept  delivery  therof  by  instalments. 

(2.)  Where  there  is  a  contract  to  sell  goods  to  be  deliv- 
ered by  stated  instalments,  which  are  to  be  separately  paid 
for,  and  the  seller  makes  defective  deliveries  in  respect  of 


APPENDIX   F  467 

one  or  more  instalments,  or  the  buyer  neglects  or  refuses  to 
take  delivery  of  or  pay  for  one  or  more  instalments,  it  de- 
pends in  each  case  on  the  terms  of  the  contract  and  the  cir- 
cumstances of  the  case,  whether  the  breach  of  contract  is  so 
material  as  to  justify  the  injured  party  in  refusing  to  pro- 
ceed further  and  suing  for  damages  for  breach  of  the  entire 
contract,  or  whether  the  breach  is  severable,  giving  rise  to  a 
claim  for  compensation,  but  not  to  a  right  to  treat  the  whole 
contract  as  broken. 

Section  46.    Delivery  to  a  Carrier  on  Behalf  of  the  Buyer. 

(1.)  Where,  in  pursuance  of  a  contract  to  sell  or  a  sale, 
the  seller  is  authorized  or  required  to  send  the  goods  to  the 
buyer,  delivery  of  the  goods  to  a  carrier,  whether  named  by 
the  buyer  or  not,  for  the  purpose  of  transmission  to  the 
buyer  is  deemed  to  be  a  delivery  of  the  goods  to  the  buyer, 
except  in  the  cases  provided  for  in  section  19,  Rule  5,  or 
unless  a  contrary  intent  appears. 

(2.)  Unless  otherwise  authorized  by  the  buyer,  the  seller 
must  make  such  contract  with  the  carrier  on  behalf  of  the 
buyer  as  may  be  reasonable,  having  regard  to  the  nature  of 
the  goods  and  the  other  circumstances  of  the  case.  If  the 
seller  omit  so  to  do,  and  the  goods  are  lost  or  damaged  in 
course  of  transit,  the  buyer  may  decline  to  treat  the  delivery 
to  the  carrier  as  a  delivery  to  himself,  or  may  hold  the  seller 
responsible  in  damages. 

(3.)  Unless  otherwise  agreed,  where  goods  are  sent  by 
the  seller  to  the  buyer  under  circumstances  in  which  the  seller 
knows  or  ought  to  know  that  it  is  usual  to  insure,  the  seller 
must  give  such  notice  to  the  buyer  as  may  enable  him  to  in- 
sure them  during  their  transit,  and,  if  the  seller  fails  to  do  so, 
the  goods  shall  be  deemed  to  be  at  his  risk  during  such 
transit. 

Section  47.     Right  to  Examine  the  Goods. 

(1.)  "Where  goods  are  delivered  to  the  buyer,  which  he 
has  not  previously  examined,  he  is  not  deemed  to  have  ac- 
cepted them  unless  and  until  he  has  had  a  reasonable  oppor- 
tunity of  examining  them  for  the  purpose  of  ascertaining 
whether  they  are  in  conformity  with  the  contract. 


468  putney's  bAK  examination  review 

(2.)  Unless  othervvisc  agreed,  \\iu;ii  the  seller  tenders 
delivery  of  goods  to  the  buyer,  he  is  bound,  on  recjuest,  to 
afford  the  bujer  a  reasonable  opportunity  of  examining  the 
goods  for  the  purpose  of  ascertaining  whether  they  are  in 
conformity  with  the  contract. 

(3.)  Where  goods  are  delivered  to  a  carrier  by  the  seller, 
in  accordance  with  an  order  from  or  agreement  with  the  buy- 
er, upon  the  terms  that  the  goods  shall  not  be  delivered  by  the 
carrier  to  the  buyer  until  he  has  paid  the  price,  whether  such 
terms  are  indicated  by  marking  the  goods  with  the  words 
"collect  on  delivery,"  or  otherwise,  the  buyer  is  not  entitled 
to  examine  the  goods  bc^fore  payment  of  the  price  in  the  ab- 
sence of  agreement  permitting  such  examination. 

Section  48.    What  Constitutes  Acceptance. 

The  buyer  is  deemed  to  have  accepted  the  goods  when  he 
intimates  to  the  seller  tliat  he  has  accepted  them,  or  when 
the  goods  have  been  delivered  to  him,  and  he  does  any  act  in 
relation  to  them  whicii  is  inconsistent  with  the  ownership  of 
the  seller,  or  when,  after  the  lapse  of  a  reasonable  time,  he 
retains  the  goods  Avithout  intimating  to  the  seller  that  he  has 
rejected  them. 

Section  49.    Acceptance  Does  Not  Bar  Action  for  Damages. 

In  the  absence  of  exi)ress  or  implied  agreement  of  the  par- 
ties, acceptance  of  the  goods  by  the  buyer  shall  not  discharge 
the  seller  from  liability  in  damages  or  other  legal  remedy 
for  breach  of  any  promise  or  warranty  in  the  contract  to  sell 
or  the  sale.  But,  if,  after  acceptance  of  the  goods,  the  buyer 
fail  to  give  notice  to  the  seller  of  the  breach  of  any  promise 
or  warranty  within  a  reasonable  time  after  the  l)nyer  knows, 
or  ought  to  know  of  such  breach,  the  seller  shall  not  be  liable 
therefor. 

Section  50.  Buyer  Is  Not  Bound  to  Return  Goods  Wrongly- 
Delivered. 

Unless  otherwise  agreed,  where  goods  are  delivered  to  the 
buyer,  and  he  refuses  to  accept  them,  having  the  right  so  to 
do,  he  is  not  bound  to  return  them  to  the  seller,  but  it  is  suffi- 
cient if  he  notifies  the  seller  that  he  refuses  to  accept  them. 


APPENDIX    F  469 

Section  51.  Buyer's  Liability  for  Failing  to  Accept  De- 
livery. 

When  the  seller  is  ready  and  willing  to  deliver  the  goods, 
and  requests  the  buyer  to  take  delivery,  and  the  buyer  does 
not  within  a  reasonable  time  after  such  request  take  delivery 
of  the  goods,  he  is  liable  to  the  seller  for  any  loss  occasioned 
by  his  neglect  or  refusal  to  take  delivery,  and  also  for  a  rea- 
sonable charge  for  the  care  and  custody  of  the  goods.  If 
the  neglect  or  refusal  of  the  buyer  to  take  delivery  amounts 
to  a  repudiation  or  breach  of  the  entire  contract,  the  seller 
shall  have  the  rights  against  the  goods  and  on  the  contract 
hereinafter  provided  in  favor  of  the  seller  when  the  buyer  is 
in  default. 

PART  IV. 

RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS. 

Section  52.     Definition  of  Unpaid  Seller. 

(1.)  The  seller  of  goods  is  deemed  to  be  an  unpaid  seller 
within  the  meaning  of  this  act — 

(a.)  When  the  whole  of  the  price  has  not  been  paid  or 
tendered. 

(b.)  When  a  bill  of  exchange  or  other  negotiable  instru- 
ment has  been  received  as  conditional  payment,  and  the  con- 
dition on  which  it  was  received  has  been  broken  by  reason  of 
the  dishonor  of  the  instrument,  the  insolvency  of  the  buyer, 
or  otherwise. 

(2.)  In  this  part  of  this  act  the  term  "seller"  includes  an 
agent  of  the  seller  to  whom  the  bill  of  lading  has  been  in- 
dorsed, or  a  consignor  or  agent  who  has  himself  paid,  or  is 
directly  responsible  for,  the  price,  or  any  other  person  who 
is  in  the  position  of  a  seller. 

Section  53. — Remedies  of  an  Unpaid  Seller. 

(1.)  Subject  to  the  provisions  of  this  act,  notwithstanding 
that  the  property  in  the  goods  may  have  passed  to  the  buyer, 
the  unpaid  seller  of  goods,  as  such,  has — 

(a.)  A  lien  on  the  goods  or  right  to  retain  them  for  the 
price  while  he  is  in  possession  of  them ; 


170  putney's    BAK    examination    UEVIEW 

(b.)  In  case  of  the  insolvency  of  the  buyer,  a  right  of 
stopping  the  goods  in  transitu  after  he  has  parted  with  the 
possession  of  them ; 

(e.)     A  right  of  resale  as  limited  by  this  act; 

(d.)     A  right  to  rescind  the  sale  as  limited  by  this  act. 

(2.)  Where  the  property  in  goods  has  not  passed  to  the 
buyer,  the  unpaid  seller  has,  in  addition  to  his  other  reme- 
dies, a  right  of  withholding  delivery  similar  to  and  coexten- 
sive wdth  his  rights  of  lien  and  stoppage  in  transitu  where 
the  property  has  passed  to  the  buyer. 

Unpaid  Seller's  Lien. 
Section  54.     When  Right  of  Lien  May  Be  Exercised. 

(1.)  !Sul)ject  to  the  provisions  of  this  act,  the  unpaid 
seller  of  goods  who  is  in  possession  of  them  is  entitled  to  re- 
tain possession  of  them  until  payment  or  tender  of  the  price 
in  the  following  cases,  namely  : 

(a.)  Where  the  goods  have  been  sold  without  any  stipu- 
lation as  to  credit : 

(b.)  Where  the  goods  have  been  sold  on  credit,  but  the 
term  of  credit  has  expired  ; 

(c.)     Where  the  buyer  becomes  insolvent. 

(2.)  The  seller  may  exercise  his  right  of  lien  notwith- 
standing that  he  is  in  possession  of  the  goods  as  agent  or 
bailee  for  the  buyer. 

Section  55.     Lien  After  Part  Delivery. 

Where  an  unpaid  seller  has  made  part  delivery  of  the 
goods,  he  may  exercise  his  right  of  lien  on  the  remainder, 
unless  such  part  delivery  has  been  made  under  such  circum- 
stances as  to  show  an  intent  to  waive  the  lien  or  right  of  re- 
tention. 

Section  56.    When  Lien  Is  Lost. 

(1.)     The  unpaid  seller  of  goods  loses  his  lien  thereon, — 

(a.)  When  he  delivers  the  goods  to  a  carrier  or  other 
bailee  for  the  purpose  of  transmission  to  the  buyer  without 
reserving  the  property  in  the  goods  or  the  right  to  the  pos- 
session thereof; 


APPENDIX    F  471 

(b.)  When  the  buyer  or  his  agent  lawfully  obtains  pos- 
session of  the  goods ; 

(c.)     By  waiver  thereof. 

(2.)  The  unpaid  seller  of  goods,  having  a  lien  thereon, 
does  not  lose  his  lien  by  reason  only  that  he  has  obtained 
judgment  or  decree  for  the  price  of  the  goods. 

Stoppage  in  Transitu. 

Section  57.    Seller  May  Stop  Goods  on  Buyer's  Insolvency. 

Subject  to  the  provisions  of  this  act,  when  the  buyer  of 
goods  is  or  becomes  insolvent,  the  unpaid  seller  who  has 
parted  with  the  possession  of  the  goods  has  the  right  of  stop- 
ping them  in  transitu,  that  is  to  say,  he  may  resume  posses- 
sion of  the  goods  at  any  time  while  they  are  in  transit,  and 
he  will  then  become  entitled  to  the  same  rights  in  regard  to 
the  goods  as  he  would  have  had  if  he  had  never  parted  with 
the  possession. 

Section  58.    When  Goods  Are  in  Transit. 

(1.)  Goods  are  in  transit  within  the  meaning  of  section 
57,- 

(a.)  From  the  time  when  they  are  delivered  to  a  carrier 
by  land  or  water,  or  other  bailee  for  the  purpose  of  transmis- 
sion to  the  buyer,  until  the  buyer,  or  his  agent  in  that  behalf, 
takes  delivery  of  them  from  such  carrier  or  other  bailee; 

(b.)  If  the  goods  are  rejected  by  the  buyer,  and  the  car- 
rier or  other  bailee  continues  in  possession  of  them,  even  if 
the  seller  has  refused  to  receive  them  back. 

(2.)  Goods  are  no  longer  in  transit  within  the  meaning 
of  section  57, — 

(a.)  If  the  buyer,  or  his  agent  in  that  behalf,  obtains  de- 
livery of  the  goods  before  their  arrival  at  the  appointed  des- 
tination ; 

(b.)  If,  after  the  arrival  of  the  goods  at  the  appointed 
destination,  the  carrier  or  other  bailee  acknowledges  to  the 
buyer  or  his  agent  that  he  holds  the  goods  on  his  behalf  and 
continues  in  possession  of  them  as  bailee  for  the  buyer  or  his 


472  PUTNEY  S    UAK    EXAMINATION    REVIEW 

a^'ent;  and  it  is  immaterial  that  a  iurther  destination  for  tlie 
goods  may  have  been  indicated  by  the  buyer ; 

(c.)  If  the  carrier  or  other  bailee  wrongfully  refuses  to 
deliver  the  goods  to  the  buyer  or  his  agent  in  that  behalf. 

(3.)  If  goods  are  delivered  to  a  ship  chartered  by  the 
buyer,  it  is  a  question  depending  on  the  circumstances  of  the 
particular  case,  whether  they  are  in  the  possession  of  the 
master  as  a  carrier  or  as  agent  of  the  buyer. 

(4.)  If  part  delivery  of  the  goods  has  been  made  to  the 
buyer,  or  his  agent  in  that  behalf,  the  remainder  of  the  goods 
may  be  stopped  in  transitu,  unless  such  part  delivery  has 
been  made  under  such  circumstances  as  to  show  an  agree- 
ment with  the  buyer  to  give  up  po.ssession  of  the  whole  of  the 
goods. 

Section  59.     Ways  of  Exercising  the  Right  to  Stop. 

(1.)  The  unpaid  seller  ]nay  exercise  his  right  of  stoppage 
in  transitu  either  by  obtaining  actual  possession  of  the  goods 
or  by  giving  notice  of  his  claim  to  the  carrier  or  other  bailee 
in  whose  possession  the  goods  are.  Such  notice  may  be  given 
either  to  the  person  in  actual  possession  of  the  goods  or  to  his 
principal.  In  the  latter  case  the  notice,  to  be  effectual,  must 
be  given  at  such  time  and  under  such  circumstances  that  the 
principal,  by  the  exercise  of  reasonable  diligence,  may  pre- 
vent a  delivery  to  the  buyer. 

(2.)  When  notice  of  stoppage  in  transitu  is  given  by  the 
seller  to  the  carrier,  or  other  bailee  in  possession  of  the  goods, 
he  must  redeliver  the  goods  to,  or  according  to  the  directions 
of,  the  seller.  The  expenses  of  such  delivery  must  be  borne 
by  the  seller.  If,  hovrever,  a  negotiable  document  of  title 
representing  the  goods  has  been  issued  by  the  carrier  or 
other  bailee,  he  shall  not  be  obliged  to  deliver  or  justified  in 
delivering  the  goods  to  the  seller  unless  such  document  is 
first  surrendered  for  cancellation. 

Resale  by  the  Seller. 
Section  60.     When  and  How  Resale  May  Be  Made. 

(1.)  Where  the  goods  are  of  a  perishable  nature,  or  where 
the  seller  expressly  reserves  the  right  of  resale  in  case  the 


APPENDIX    F  473 

buyer  should  make  default,  or  where  the  buyer  has  been  in 
default  in  the  payment  of  the  price  an  unreasonable  time,  an 
unpaid  seller  having  a  right  of  lien  or  having  stopped  the 
gods  in  transitu  may  resell  the  goods.  He  shall  not  thereafter 
be  liable  to  the  original  buyer  upon  the  contract  to  sell  or 
the  sale  or  for  any  profit  made  by  such  resale,  but  may  re- 
cover from  the  buyer  damages  for  any  loss  occasioned  by 
the  breach  of  the  contract  or  the  sale. 

(2)  Where  a  resale  is  made,  as  authorized  in  this  section, 
the  buyer  acquires  a  good  title  as  against  the  original  buyer. 

(3.)  It  is  not  essential  to  the  validity  of  a  resale  that  no- 
tice of  an  intention  to  resell  the  goods  be  given  by  the  seller 
to  the  original  buyer.  But  where  the  right  to  resell  is  not 
based  on  the  perishable  nature  of  the  goods  or  upon  an  ex- 
press provision  of  the  contract  or  the  sale,  the  giving  or  fail- 
ure to  give  such  notice  shall  be  relevant  in  any  issue  involv- 
ing the  question  whether  the  buyer  had  been  in  default  an 
unreasonable  time  before  the  resale  was  made. 

(4.)  It  is  not  essential  to  the  validity  of  a  resale  that 
notice  of  the  time  and  place  of  such  resale  should  be  given  by 
the  seller  to  the  original  buyer. 

(5.)  The  seller  is  bound  to  exercise  reasonable  care  and 
judgment  in  making  a  resale,  and  subject  to  this  requirement 
may  make  a  resale  either  by  public  or  private  sale. 

Rescission  by  the  Seller. 

Section  61.  When  and  How  the  Seller  May  Rescind  the 
Sale. 

(1.)  An  unpaid  seller  having  a  right  of  lien  or  having 
stopped  the  goods  in  transitu,  may  rescind  the  transfer  of 
title  and  resume  the  property  in  the  goods,  where  he  ex- 
pressly reserved  the  right  to  do  so  in  case  the  buyer  should 
make  default,  or  where  the  buyer  has  been  in  default  in  the 
payment  of  the  price  an  unreasonable  time.  The  seller  shall 
not  thereafter  be  liable  to  the  buyer  upon  the  contract  to  sell 
or  the  sale,  but  may  recover  from  the  buyer  damages  for  any 
loss  occasioned  by  the  breach  of  the  contract  or  the  sale. 

(2.)     Where  a  resale  is  made,  as  authorized  in  this  section, 


474  putney's  bar  examination  review 

rescinded  by  an  unpaid  seller  until  he  has  manifested  by  no- 
tice to  the  buyer  or  by  some  other  overt  act  an  intention  to 
rescind.  It  is  not  necessary  that  such  over  act  should  be 
communicated  to  the  buyer,  but  the  giving  or  failure  to  give 
notice  to  the  buyer  of  the  intention  to  rescind  shall  be  rele- 
vant in  any  issue  involvinj;  the  question  whether  the  buyer 
had  been  in  default  an  unreasonable  time  before  the  right  of 
rescission  was  asserted. 

Section  62.  Effect  of  Sale  of  Goods  Subject  to  Lien  or 
Stoppage  in  Transitu. 

Subject  to  the  provisions  of  this  act,  the  unpaid  seller's 
right  of  lien  or  stoppage  in  transitu  is  not  affected  by  any 
sale,  or  other  disposition  of  the  goods  which  the  buyer  may 
have  made,  unless  the  seller  has  assented  thereto. 

If,  however,  a  negotiable  document  of  title  has  been  issued 
for  goods,  no  seller's  lien  or  right  of  stoppage  in  transitu 
shall  defeat  the  right  of  any  purchaser  for  value  in  good 
faith  to  whom  such  document  has  been  negotiated,  whether 
such  negotiation  be  prior  or  subsequent  to  the  notification  to 
the  carrier,  or  other  bailee  who  issued  such  documnt,  of  the 
seller's  claim  to  a  lien  or  right  of  stoppage  in  transitu. 


PART  V. 

ACTIONS  FOR  BREACH  OF  THE  CONTRACT. 
REMEDIES  OF  THE  SELLER. 

Section  63.    Action  for  the  Price. 

(1.)  Where,  under  a  contract  to  sell  or  a  sale,  the  prop- 
erty in  the  goods  has  passed  to  the  buyer,  and  the  buyer 
wrongfully  neglects  or  refuses  to  pay  for  the  goods  according 
to  the  terms  of  the  contract  or  the  sale,  the  seller  may  main- 
tain an  action  against  him  for  the  price  of  the  goods. 

(2.)  Where,  under  a  contract  to  sell  or  a  sale,  the  price 
is  payable  on  a  day  certain,  irrespective  of  delivery  or  of 
transfer  of  title,  and  the  buyer  wrongfully  neglects  or  refuses 
to  pay  such  price,  the  seller  may  maintain  an  action  for  the 


APPENDIX    F  475 

price,  although  the  property  in  the  goods  has  not  passed,  and 
the  goods  have  not  been  appropriated  to  the  contract.  But 
it  shall  be  a  defense  to  such  an  action  that  the  seller  at  any 
time  before  judgment  in  such  action  has  manifested  an  in- 
ability to  perform  the  contract  or  the  sale  on  his  part  or  an 
intention  not  to  perform  it. 

(3.)  Although  the  property  in  the  goods  has  not  passed, 
if  they  cannot  readily  be  resold  for  a  reasonable  price,  and 
if  the  provisions  of  section  64  (4)  are  not  applicable,  the 
seller  may  offer  to  deliver  the  goods  to  the  buyer,  and,  if 
the  buyer  refuses  to  receive  them,  may  notify  the  buyer  that 
the  goods  are  thereafter  held  by  the  seller  as  bailee  for  the 
buyer.  Thereafter  the  seller  may  treat  the  goods  as  the 
buyer's  and  may  maintain  an  action  for  the  price. 

Section  64.  Action  for  Damages  for  Non-Acceptance  of 
the  Goods. 

(1.)  Where  the  buyer  wrongfully  neglects  or  refuses  to 
accept  and  pay  for  the  goods,  the  seller  may  maintain  an 
action  against  him  for  damages  for  non-acceptance. 

(2.)  The  measure  of  damages  is  the  estimated  loss  directly 
and  naturally  resulting,  in  the  ordinary  course  of  events, 
from  the  buyer's  breach  of  contract. 

(3.)  Where  there  is  an  available  market  for  the  goods 
in  question,  the  measure  of  damages  is,  in  the  absence  of 
special  circumstances,  showing  proximate  damage  of  a 
greater  amount,  the  difference  between  the  contract  price  and 
the  market  or  current  price  at  the  time  or  times  when  the 
goods  ought  to  have  been  accepted,  or,  if  no  time  was  fixed 
for  acceptance,  then  at  the  time  of  the  refusal  to  accept. 

(4.)  If,  while  labor  or  expense  of  material  amount  are 
necessary  on  the  part  of  the  seller  to  enable  him  to  fulfill  his 
obligations  under  the  contract  to  sell  or  the  sale,  the  buyer 
repudiates  the  contract  or  the  sale,  or  notifies  the  seller  to 
proceed  no  further  therewith,  the  buyer  shall  be  liable  to  the 
seller  for  no  greater  damages  than  the  seller  would  have 
suffered  if  he  did  nothing  towards  carrying  out  the  contract 
or  the  sale  after  receiving  notice  of  the  buyer's  repudiation 


47G  putney's  bak  examination  ueview 

or  countermand.  The  prolit  the  seller  would  have  made  if 
the  contract  or  the  sale  had  been  fully  performed  shall  be 
considered  in  estiniatinu- such  daiiuiy:es. 

Section  65.    When  Seller  May  Rescind  Contract  or  Sale. 

Where  the  goods  have  not  been  delivered  to  the  buyer,  and 
the  buyer  has  repudiated  the  contract  to  sell  or  sale,  or 
has  manifested  his  inability  to  perform  his  obligations  there- 
under, or  has  committed  a  material  breach  thereof,  the  seller 
may  totally  rescind  the  contract  or  the  sale  by  giving  notice 
of  his  election  so  to  do  to  the  buyer. 

REMEDIES  OF  THE  BUYER. 

Section  66.    Action  for  Converting  or  Detaining  Goods. 

Where  the  property  in  the  goods  has  ])assed  to  the  buye" 
and  the  seller  wrongfully  neglects  or  refuses  to  deliver  the 
goods,  the  buyer  may  maintain  any  action  allowed  by  law  to 
the  owner  of  goods  of  similar  kind  when  wrongfully  con- 
verted or  withheld. 

Section  67.     Action  for  Failing  to  Deliver  Goods. 

(1.)  Where  the  property  in  the  goods  has  not  i)assed  to 
the  buyer,  and  the  seller  wrongfully  neglects  or  refuses  to 
deliver  the  goods,  the  buyer  may  maintain  an  action  against 
the  seller  for  damages  for  non-delivery. 

(2.)  The  measure  of  damages  is  the  loss  directly  and  nat- 
urally resulting  in  the  ordinary  course  of  events,  from  the 
seller's  breach  of  contract. 

(3.)  Where  there  is  an  available  market  for  the  goods  in 
question,  the  measure  of  damages,  in  the  absence  of  special 
circumstances  showing  proximate  damages  of  a  greater 
amount,  is  the  difference  between  the  contract  price  and  the 
market  or  current  price  of  the  goods  at  the  time  or  times 
when  they  ought  to  have  been  delivered,  or,  if  no  time  was 
fixed,  then  at  the  time  of  the  refusal  to  deliver. 

Section  68.    Specific  Performance. 

Where  the  seller  has  broken  a  contract  to  deliver  specific 
or  ascertained  goods,  a  court  having  the  powers  of  a  court 
of  equity  may,  if  it  thinks    fit,  on    the    application    of    the 


APPENDIX   F  477 

buyer,  by  its  judgment  or  decree  direct  that  the  contract 
shall  be  performed  specifically,  without  giving  the  seller  the 
option  of  retaining  the  goods  on  payment  of  damages.  The 
judgment  or  decree  may  be  unconditional,  or  upon  such 
terms  and  conditions  as  to  damages,  payment  of  the  price  and 
otherwise,  as  to  the  court  may  seem  just. 

Section  69.    Remedies  for  Breach  of  Warranty. 

(1.)  Where  there  is  a  breach  of  warranty  by  the  seller, 
the  buyer  may,  at  his  election, — 

(a)  Accept  or  keep  the  goods  and  set  up  against  the 
seller,  the  breach  of  warranty  by  way  of  recoupment  in  dimi- 
nution or  extinction  of  the  price; 

(b.)  Accept  or  keep  the  goods  and  maintain  an  action 
against  the  seller  for  damages  for  the  breach  of  warranty  ; 

(c.)  Refuse  to  accept  the  goods,  if  the  property  therein 
has  not  passed,  and  maintain  an  action  against  the  seller  for 
damages  for  the  breach  of  warranty ; 

(d.)  Rescind  the  contract  to  sell  or  the  sale  and  refuse  to 
receive  the  goods,  or  if  the  goods  have  already  been  received, 
return  them  or  offer  to  return  them  to  the  seller  and  recover 
the  price  or  any  part  thereof  which  has  been  paid. 

(2.)  When  the  buyer  has  claimed  and  been  granted  a 
remedy  in  any  one  of  these  ways,  no  other  remedy  can  there- 
after be  granted. 

(3.)  Where  the  goods  have  been  delivered  to  the  buyer, 
he  cannot  rescind  the  sale  if  he  knew  of  the  breach  of  war- 
ranty when  he  accepted  the  goods,  or  if  he  fails  to  notify  the 
seller  within  a  reasonable  time  of  the  election  to  rescind,  or 
if  he  fails  to  return  or  to  offer  to  return  the  goods  to  the 
seller  in  substantially  as  good  condition  as  they  were  in  at 
the  time  the  property  was  transferred  to  the  buyer.  But  if 
deterioration  or  injury  of  the  goods  is  due  to  the  breach  of 
warranty,  such  deterioration  or  injury  shall  not  prevent  the 
buyer  from  returning  or  offering  to  return  the  goods  to  the 
seller  and  rescinding  the  sale. 

(4.)  Where  the  buyer  is  entitled  to  rescind  the  sale  and 
elects  to  do  so,  the  buyer  shall  cease  to  be  liable  for  the  price 
upon  returning  or  offering  to  return  the  goods.     If  the  price 


478  putney's  hau  kxamination  uf;vik\v 

or  any  part  tliert*of  has  already  been  paid,  the  seUcr  shall  bp 
liable  to  repay  so  much  thereof  as  has  been  paid,  concurrently 
with  the  return  of  the  goods,  or  immediately  after  an  offer 
to  return  the  goods  in  exchange  for  repayment  of  the  price. 

(5.)  Where  the  buj'er  is  entitled  to  rescind  the  sale  and 
elects  to  do  so,  if  the  seller  refuses  to  accei)t  an  offer  of  the 
buyer  to  return  the  goods,  the  buyer  shall  thiM-cnfttT  be 
deemed  to  hold  the  goods  as  bailee  for  the  seller,  but  subject 
to  a  lien  to  secure  the  repa\  iiient  of  any  portion  of  the  price 
which  has  been  paid,  and  with  the  remedies  for  the  enforce- 
ment of  such  lien  allowed  to  an  unpaid  seller  by  section  53. 

(6.)  The  measure  of  damages  for  breach  of  warranty  is 
the  loss  directly  and  naturally  resulting,  in  the  ordinary 
course  of  events,  from  the  breach  of  warranty. 

(7.)  In  the  ease  of  breach  of  warranty  of  quality,  such 
loss,  in  the  absence  of  special  circumstances  showing  proxi- 
mate damage  of  a  greater  amount,  is  the  difference  between 
the  value  of  the  goods  at  the  time  of  delivery  to  the  buyer 
and  the  value  they  would  have  had  if  they  had  answered  to 
the  M-arranty. 

Section  70.     Interest  and  Special  Dajnages. 

Xotliing  in  tliis  act  shall  al'i'ect  the  i'i<:lit  of  the  buyer  or 
the  seller  to  recover  interest  or  special  damages  in  any  case 
where  by  law  interest  or  f-pecial  damages  may  be  recover- 
able, or  to  recover  money  i^aid  where  the  consideration  for 
the  payment  of  it  has  failed. 


PART  VI. 
INTERPRETATION. 

Section  71.    Variation  of  Implied  Obligations. 

Where  any  right,  duty  or  liability  would  arise  under  a 
contract  to  sell  or  a  sale  bj'  implication  of  law,  it  may  be 
negatived  or  varied  by  express  agreement  or  by  the  course 
of  dealing  between  the  parties,  or  by  custom,  if  the  custom 
be  such  as  to  bind  both  parties  to  the  contract  or  the  sale. 


APPENDIX    F  479 

Section  72.    Rights  May  Be  Enforced  by  Action. 

Where  any  right,  duty  (3r  liability  is  declared  by  this  act, 
it  may,  unless  otherwise  by  this  act  provided,  be  enforced  by 
action. 

Section  73.     Rule  for  Cases  Not  Provided  for  by  This  Act. 

In  any  case  not  provided  for  in  this  act,  the  rules  of  law 
and  equity,  including  the  law  merchant,  and  in  particular 
the  rules  relating  to  the  law  of  principal  and  agent  and  to 
the  effect  of  fraud,  misrepresentation,  duress  or  coercion, 
mistake,  bankruptcy,  or  other  invalidating  cause,  shall  con- 
tinue to  apply  to  contracts  to  sell  and  to  sales  of  goods. 

Section  74.  Interpretation  Shall  Give  Effect  to  Purpose 
of  Uniformity. 

This  act  shall  be  so  interpreted  and  construed,  as  to  ef- 
fectuate its  general  purpose  to  make  uniform  the  laws  of 
those  states  which  enact  it. 

Section  75.    Provisions  Not  Applicable  to  Mortgages. 

The  provisions  of  this  act  relating  to  contracts  to  sell  and 
to  sales  do  not  apply,  unless  so  stated,  to  any  transaction  in 
the  form  of  a  contract  to  sell  or  a  sale  which  is  intended  to 
operate  by  way  of  mortgage,  pledge,  charge,  or  other  security. 

Section  76.    Definitions. 

(1.)  In  this  act,  unless  the  context  or  subject  matter 
otherwise  requires — 

''Action"  includes  counterclaim,  set-off  and  suit  in  equity. 

"Buyer"  means  a  person  Avho  buys  or  agrees  to  buy  goods 
or  any  legal  successor  in  interest  of  such  person. 

"Defendant"  includes  a  plaintiff  against  whom  a  right  of 
set-off  or  counterclaim  is  asserted. 

"Delivery"  means  voluntary  transfer  of  possession  from 
one  person  to  another. 

"Divisible  contract  to  sell  or  sale"  means  a  contract  to 
sell  or  a  sale  in  which  by  its  terms  the  price  for  a  portion  or 
portions  of  the  goods  less  than  the  whole  is  fixed  or  ascer- 
tainable by  compution. 

"Document  of  title  to  goods"  includes  any  bill  of  lading, 
dock  warrant,  warehouse  receipt  or  order  for  the  delivery  of 


480  putney's    BAlt    KXAMINATION    UKVIEW 

goods,  or  any  other  docuiin'iit  used  in  tlic  ordinary  course  of 
business  in  Ihe  sale  or  trausler  of  goods,  as  proof  of  the  pos- 
session or  control  of  the  goods,  or  authorizing  or  purporting 
to  authorize  the  possessor  of  the  document  to  transfer  or  re- 
ceive, either  by  indorsement  or  by  delivery,  goods  repre- 
sented by  such  document, 

"Fault"  means  wrongful  act  or  default. 

"Fungible  goods"  means  goods  of  which  any  unit  is  from 
its  nature  or  by  mercantile  usage  treated  as  the  equivalent 
of  any  other  unit. 

"Future  goods"  means  goods  to  be  manufactured  or  ac- 
quired by  the  seller  after  the  making  of  the  contract  of  sale. 

"Goods"  include  all  chattels  personal  other  than  things  in 
action  and  money.  The  term  includes  emblements,  indus- 
trial growing  crops,  and  things  attached  to  or  forming  part 
of  the  land  which  are  agreed  to  be  severed  before  sale  or 
under  the  contract  of  sale. 

"Order"  in  sections  of  this  act  relating  to  documents  of 
title  means  an  order  by  indorsement  on  the  document. 

"Person"  includes  a  corporation  or  partnership  of  two  or 
more  persons  having  a  joint  or  common  interest. 

"Plaintiff"  includes  defendant  asserting  a  right  of  set-off 
or  counterclaim. 

"Property"  means  the  general  property  in  goods,  and  not 
merely  a  special  proi)erty. 

"Purchaser"  includes  mortgagee  and  pledgee, 

"Purchases"  includes  taking'  as  a  mortgagee  or  as  a 
pledgee. 

"Quality  of  Goods"  includes  their  state  or  condition. 

"Sale"  includes  a  bargain  and  sale  as  well  as  a  sale  and 
delivery. 

"Seller"  means  a  person  who  sells  or  agrees  to  sell  goods, 
or  any  legal  successor  in  the  interest  of  such  person. 

"Specific  goods"  means  goods  identified  and  agreed  upon 
at  the  time  a  contract  to  sell  or  a  sale  is  made. 

"Value"  is  any  consideration  sufficient  to  support  a  simple 
contract.  An  antecedent  or  pre-existing  claim,  whether  for 
money  or  not,  constitutes  value  where  goods  or  documents  of 


APPENDIX    F  481 

titles  are  taken  either  in  satisfaetion  thereof  or  as  security 
therefor. 

(2.)  A  thing  is  clone  "in  good  failh"  within  the  mean- 
ing of  this  act  when  it  is  in  fact  done  honestly,  whether  it  be 
done  negligently  or  not. 

(3.)  A  person  is  insolvent  within  the  meaning  of  this  act 
who  either  has  ceased  to  pay  his  debts  in  the  ordinary  course 
of  business  or  cannot  pay  his  debts  as  they  become  due, 
whether  he  has  committed  an  act  of  "bankruptcy  or  not,  and 
whether  he  is  insolvent  wuthin  the  meaning  of  the  federal 
bankruptcy  law  or  not. 

(4.)  Goods  are  in  a  "deliverable  state"  within  the  mean- 
ing of  this  act  when  they  are  in  such  a  state  that  the  buyer 
would,  under  the  contract,  be  bound  to  take  delivery  of 
them. 

Section  76a.  Act  Does  Not  Apply  to  Existing  Sales  or 
Contracts  to  Sell. 

None  of  the  provisions  of  this  act  shall  apply  to  any  sale, 
or  to  any  contract  to  sell,  made  prior  to  the  taking  effect  of 
this  Act. 

Section  76b.  No  Repeal  or  Uniform  Warehouse  Receipt 
Act  or  Uniform  Bills  of  Lading  Act. 

Nothing  in  this  Act  or  in  any  repealing  clause  thereof 
shall  be  construed  to  repeal  or  limit  any  of  the  provisions  of 
the  Act  to  make  Uniform  the  Law  of  Warehouse  Receipts,  or 
of  the  Act  to  jNIake  Uniform  the  Law  of  Bills  of  Lading. 

Section  77.    Inconsistent  Legislation  Repealed. 

All  acts  or  parts  of  acts  inconsistent  with  this  act  are 
hereby  repealed  except  as  provided  in  section  76b. 

Section  78.     Time  When  the  Act  Takes  Effect. 

This  act  shall  take  effect  on  the day  of , 

one  thousand  nine  hundred  and 

Section  79.     Name  of  Act. 

This  act  may  be  cited  as  the  Uniform  Sales  Act. 


DEFINITIONS  AND  LATIN  LEGAL 
TERMS. 

(The  following  pages  contain  a  few  detinitions  and  Latin  legal 
terms  which  a  student  should  read  before  taking  his  bar 
examination.  Many  of  the  definitions  here  given  have  been 
involved  in  questions  given  in  recent  bar  examinations  in 
the  different  states.) 

A. 

Ab  initio. — From  the  beginning. 

Absque. — Without. 

Absque  hoc. — Without  this. 

Acquittance. — Release  of  a  sum  of  money  due. 

Ad  damnum. — To  the  damage. 

Ademption  (of  legacy). — Taking  away  the  legacy  of  specific 
property,  by  disposing  of  the  property  before  the  death  of 
the  testator. 

Ad  litem. — ^For  the  time. 

Ad  manus  et  possessionem  devenerunt. — They  had  come  to  his 
hands  and  possession. 

Ad.  ostium  ecelesie. — At  the  door  of  the  church. 

Aliunde. — From  elsewhere. 

Allonge. — A  piece  of  paper,  annexed  to  a  negotiable  instru- 
ment, upon  which  indorsements  may  be  written. 

Ambulatory. — Capable  of  alteration  or  revocation. 

A  mensa  et  thoro. — From  bed  and  board. 

Amicus  curiae. — ^Friend  of  the  court.  A  person,  not  inter- 
ested in  a  pending  suit,  inform  to  the  court  as  to  some 
matter  of  which  the  court  has  the  right  to  take  judicial 
notice. 

Ancillary. — Something  which  is  subordinate  to,  or  assists 
some  other  thing. 

Animo  capiendi. — With  intent  to  take. 

Animo  furandi. — With  intent  to  steal. 

Animo  revertendi. — With  intent  to  return. 

483 


484  putney's  liAU  kxaminatiun   ukvikw 

Aiiiiiius  testaiidi. — Intt'iitiuii  ui'  luukiiig  a  will. 

Appendant. — Used  to  designate  something  annexed  to  certain 

property. 
A  vinculo. — From  bonds. 
A  vinculo  matrimonii. — From  the  bonds  of  matrimouy. 

B. 

Bona  fide. — In  good  iailli. 

Bottomry. — A  species  of  mortgage  of  a  ship.     If  tlif  property 

is  destroyed  the  debt  is  cancelled  and  consccpii'ntly  a  rate 

of  interest,  beyond  that  allowed  under  the  usury  laws  is 

permitted. 

C. 
Capias. — A  general  lenii  for  wi-its  which  order  the  person  to 

whom  they  are  addressed  to  arrest  a  i)erson  named  ni  the 

writ. 
Capias  ad  respondendum. — A  writ  under  wiiidi  a  p<'rsou  is 

arrested  to  compel  him  to  answer. 
Capias   ad  satisfaciendum. — A  writ  under  which   a   person 

is  arrested  to  compel  him  to  satisfy  a  judgment. 
Case. — Used  as  an  abbreviation  for  trespass  on  the  case. 
Causa  mortis. — Because  of  death. 
Caveat  emptor. — Let  the  buyer  beware. 
Certiorari. — An  original  writ  by  which  the  record  of  a  case 

is  caused  to  be  certified  up  from  a  loAver  (or  trial)  court  to 

a  higher  (or  appellate)  court. 
Cestui  que  vie. — The  party  for  whose  life  (an  estate  is  held). 
Cestui  que  trust. — The  party  holding  the  beneficial  interest. 
Chose. — A  thing.    Personal  property. 

Chose  in  action. — A  right  of  action  to  recover  a  debt  or  prop- 
erty. 
Circum. — About. 
Close. — A  piece  of  land. 
Collateral. — Indirect. 

Commodatum. — A  gratuitous  loan  of  a  chattel. 
Contra  bonos  mores. — Against  good  morals. 
Corpus. — ^Body  (or  substance). 
Corpus  delicti. — Body  of  crime. 


DEFlNITIUiNS    AND    LATIN    LEGAL   TERMS  485 

Cum  testameiito  aiinexo. — With  will  annexed. 
Curia  Regis. — Court  of  King. 
Cy  Pres. — As  nearly  as  possible. 

D. 

Damnum  absque  injuria. — Loss  without  wrong. 

Darrein  presentment. — Last  presentment  (i.  e.  a  benefice). 

Debet. — He  owes. 

Debet  et  detinet. — He  owes  and  detains. 

De  bene  esse. — Concerning  what  is. 

De  bonis  non  cum  testament;>  annexo. — Of  goods  not  (admin- 
istered) with  will  annexed. 

De  bonis  non. — Of  goods  not  (i.  e.  administered). 

Dedimus  postestem  (we  have  given  power). — A  writ  authoriz- 
ing a  person  to  do  a  certain  act :  e.  g.  to  take  testimony. 

De  donis. — Concerning  ejectment  from  land. 

De  facto.— Of  (in)  fact. 

Defeasance. — A  condition  annexed  to  a  deed,  or  other  docu- 
ment, providing  that  upon  the  happening  of  a  certain  event, 
the  deed  or  other  document  shall  become  void. 

De  injuria  sua  propria. — From  his  own  proper  wrong. 

De  jure. — Of  right. 

Delectus  personarum. — Choice  of  persons. 

Deodand. — A  personal  chattel  which  has  been  the  immediate 
cause  of  the  death  of  a  human  being. 

Depositum. — A  gratuitous  bailment  of  goods  for  custody  or 
safe  keeping. 

Detinet. — ^He  detains. 

Detinue  sur  trover. — Detained  on  finding. 

Dicta. — Something  said. 

Distress. — A  taking  without  legal  process  of  personal  prop- 
erty, from  a  wrong  doer,  or  one  in  default. 

E. 

E  eonverso. — ^From  the  converse. 

Eleemosynary  (Corporations). — Corporate  bodies  created  for 

the  perpetual  distribution  of  the  bounty  of  the  founder  of 

the  corporation. 


486  putney's    UAU    LXAMINAUoN    litMhW 

Knuhlinj,'  statut*'. — Ouo  whi*li  rfiiiovfs  a  nstnctjou  or  dis- 
ability. 

Entail. — The  settk'iiu-nt  t»l'  «';il  i.ru|.ril>  upon  a  man  and  the 
heirs  of  his  body. 

Eo  iioiniiie, — By  that  name;  under  that  name. 

Escrow. — A  writin«;  delivered  to  a  tbird  persmi.  to  be  held 
by  him,  and  later  delivered  t(.  .some  person  who  will  be 
benefited  thereby,  upon  the  fuUillment  of  some  eonilition. 

Et  al. — And  another. 

Eta  fortiori. — And  so  it  follows;  by  the  stron^'er  reason. 

Ex  delicto. — ^P'rom  wrong. 

Exemplification.— A  eertilied  copy,  or  a  eo|»y  under  seal,  of 
a  public  document. 

Exoneration — Relief  from  some  burden. 

Extradition. — The  surrender  of  a  criminal  from  one  state  or 
nation  to  another. 

Ex  parte. — From  part  (i.  e.  a  ease  where  oidy  one  side  was 
represented  or  heard — or  sometimes  when  one  side  was  the 
public.) 

Ex  post  facto.— After  the  fact. 

F. 

Fac  simile. — An  exact  copy. 

Feoffment. — The  transft>r  of  possession  of  a  freehold  estate  l)y 
livery  or  seisin. 

Fructus  indnstriales. — Products  whieli  are  produced  by  hu- 
man efforts. 

Fructus  naturales. — Natural  fruits  or  products. 

G. 

Gavelkind. — A  certain  English  tenure— only  existinpr  in  the 
county  of  Kent.  TTnder  this  tenure  land  was  divided 
equally  instead  of  proinff  entirely  to  the  eldest  son. 

H. 

Habeas  corpus. — Have  you  the  body  (i.  e.  before  the  court 
issuing:  the  writ.) 

Hereditaments. — Every  kind  of  property  that  can  be  inher- 
ited. 


DEFINITIONS    AND    LATIN    LEGAL   TERMS  487 

Hei'iot. — The  best  chattel  of  a  tenant,  which,  under  the  Feudal 
system  went  to  the  lord  upon  the  death  of  the  tenant. 

High  seas. — That  part  of  the  ocean  more  than  three  miles 
from  shore. 

Hundred. — A  subdivision  of  a  country. 

I. 

Idiocy. — Mental  deticieney  existing  from  birth. 

Indebitatus  assumpsit. — Being  indebted  promised. 

In  consimili  casu. — In  a  similar  case. 

In  contractu. — In  contract. 

In  delicto. — In  tort. 

Inducement. — That  which  constitutes  the  motive  for  doing  a 
thing. 

Ill  esse. — In  beinii' — born. 

Information. — A  formal  act-usation  tiled  by  some  law  officer 
of  the  government. 

In  pari  delicto. — In  equal  Tault. 

In  personam. — Against  the  person. 

In  rem. — Against  the  thing. 

In  statu  quo. — In  present  state  (or  condition). 

Inter  vivos. — Among  the  living. 

In  transitu. — In  transit. 

Intrusion. — The  entry  of  a  stranger  on  land,  after  the  ter- 
mination of  a  particular  estate,  before  the  heir  can  enter. 

J. 

Jactitation. — A  false  pretension  to  marriage. 

Jeofail. — An  expression  nsed  in  the  time  of  oral  pleading  to 
acknowledge  an  error  in  ]"»leading.  for  the  purpose  of  cor- 
recting it. 

Jus  desponendi. — The  right  of  disposing. 

K. 

Kin. — Relations  by  consanguinity. 

L. 

Laches. — Unreasonable  delay,  negligence. 
Last  resort    (court    of). — A  court  from  which  there   is  no 
appeal. 


488  putney's  liAU  exami.nahun  ulvilw 

Lex  fori, — Law  of  the  forum  (i.  c  the  placr  where;  thi'  action 
is  tried). 

Lex  loci  contractus. — Law  of  the  place  of  contracting. 

Jjcx  niercatoria. — Law  merchant. 

LibeUant. — One  who  files  a  libel  (in  an  ecclesiastical  or  ad- 
miralty court)  against  another. 

Lis  pendens. — Pendinj,'  suit. 

Livery. — Formal  transfer. 

Loco  parentis. — In  the  place  of  a  parml. 

Locatio. — The  hiring  of  a  chattel. 

Locatio  custodiae — Hired  custody  of  a  thing. 

Locatio  operis. — Hired  services. 

Locatio  operis  faciendi. — The  hired  services  upon  a  thing. 

Locatio  operis  mercium  velu^ndornin. — Hired  carriage  of  the 
thing. 

Locatio  rei. — Th-.'  hired  use  of  a  thing. 

Locus  celebrationis. — Place  of  celebrating  (].  e.  making). 

Locus  considerntionis. — Place  of  considei-at  ion. 

Locus  poenitentiae. — Place  for  repentance. 

Locus  solutionis. — Place  of  jjcrformance. 

M. 

Majority. — Full  age. 

Mala  in  se. — Wrong  in  itself. 

Mala  prohibita. — Wrong  (because)  prohibited. 

Mandate. — A  judical  command. 

Mesne. — Middle,  intermediate. 

Mesne  process. — All  writs  in  a  case  after  its  commencement 
and  before  the  final  decree. 

Misjoinder. — The  improper  union  of  parties  or  causes  in  a 
suit. 

Mitigation. — Reduction  of  damages,  guilty  of  punishment. 

Monuments. — Permanent  landmarks  for  purpose  of  indicat- 
ing bovindaries. 

Mortmain. — A  state  of  ownership  which  makes  the  land  in- 
alienable. 

Mutatis  mutandis. — That  being  changed  which  must  be 
changed  (the  changes  being  only  as  to  details). 


DEFINITIONS   AND   LATIN    UiUAL  TEKMSi  489 

N. 

Narratio. — ^A  declaration. 

Ne  exeat. — (Let  him  not  go  out.)     A  chancery  writ. 

Negative  pregnant. — An  evasive  denial,  carrying  with  it  an 
affirmative. 

Nisi  prius. — Unless  sooner. 

Nominal. — Unimportant.    In  name  only. 

Non  assumpsit. — He  did  not  promise. 

Xon  compos  mentis. — Not  of  sound  mind. 

Non  detinet. — He  does  not  detain. 

Non  est  factum. — It  is  not  madf  :  or  it  is  not  his  deed. 

Xon  est  inventus. — It  is  not  found. 

Novation. — The  substitution  of  a  new  obligation  for  an  old 
one. 

Nudum  pactum. — Naked  promise,  i.  e.  without  any  consid- 
eration. 

Nul  tiel  record. — No  such  record. 

Nul  tiel  corporation. — No  such  corporation. 

0. 

Obiter  dicta. — Said  by  the  way. 
Onus  probandi. — Burden  of  proof. 

P. 

Panel. — List  of  persons  summoned  as  jurors. 

Pari  delicto. — In  equal  fault. 

Pari  materia. — On  the  same  matter,  or  relating  to  the  same 
subject. 

Patent. — Originally  any  open  public  document.  Now  only  ap- 
plied, in  this  country  to  (1)  a  deed  of  land  from  govern- 
ment, and  (2)  the  right  to  exclusive  use  of  his  invention 
granted  to  an  inventor. 

Peer. — Equal.  In  England  also  a  member  of  the  House  of 
Lords. 

Per  auter  vie. — For  the  life  of  another. 

Per  se. — Through  (or  by)  itself. 

Perambulator. — A  walking  of  boundaries. 

Per  verba  de  future  cum  copula. — By  words  concerning  the 
future  with  copulation. 


4'JO  i-i  i\i\'>   11  \K   iXAMiNAiioN  Ki:vii;\v 

Per  vorha  dv  iirar.s<iiii. — liy  \v(»r<ls  inn.-.-niiii;,'  iln-  inrs.-m. 
Pre-emptor. — Thy  ri^'lit  to  purthaso  property  hefon-  any  utluT 

person. 
Pro  tanto. — For  so  nuitli. 
Pro  tempore. — For  the  tim»';  temporarily. 
Puis  darrein  continnanee. — Since  the  hi.st  continuance. 
Purpresture. — The  eii('h)siiii:  or  appropriating'  of  lands  wht'ii 

belong  to  the  publie.  by  an  individual. 


Quaere. — Incpiin-. 

Quash. — To  annnl  or  diseharge. 

Quia  emptort's. — Heeause  purchasers. 

Quantum   meruit. — What  it  is  worth;  how  niiieli  \u'  merits. 

Quantum  valebant. — IIow  much  they  are  wnrlli. 

Quare  elausum  frefjit. — Heeause  he  l)roke  the  close  (or  en- 
closure). 

Quare  impedit. —  Why  he  bljiders;  a  real  pos.s«'.ssory  action, 
■which  could  be  brou^'ht  onl\  in  a  court  of  c(tmmon  pleas. 

Quasi. — As  if. 

R. 

Rebate. — Discount. 

Rebut. — To  answer  or  disprove. 

Relation. — A  carrying  l)ack  (i.  e.  in  time). 

Relevancy. — Connection  betAveen  fact  tendered  in  evidence 
and  fact  soucrhr  to  be  proved. 

Res  gestae. — The  thing  taking  place. 

S. 

Scienter. — An  allegation  in  a  pleading  that  the  defendant  did 
a  certain  thing  wilfull.v. 

Scilicet. — To  wit.    That  is  to  say. 

Scire  facias. — Cause  to  know. 

Stare  decisis. — To  stand  by  the  decisions. 

Superstitious  uses. — Uses  for  religious  purposes  not  recog- 
nized by  law. 

Supra. — Above  or  before. 

Supra  protest. — Under  protest. 


DEFINITIONS    AXD    LATIN    LKOAI.   TERMS  491 

T. 

'racking-. — The  .-iddiiii;-  oi'  ;i  jiiuior  iii(n1^a,;^('  lo  a  lirsl,  luort- 

Trespass  (Ir  lioiiis  aspoilat is. — TiTspass  I'roiii  carryiuy  away 
i^oocls. 

U. 

['berrima  fides. — Utmost  good  faith. 

Ultra  vires. — Beyond  power. 

Undo  nihil  habet. — Where  she  liad  none. 

Upset  price. — A  price,  under  Avhirh.  jjropcrty  i)ut  iij)  at  auc- 
tion cannot  be  sold. 

V. 

Vacate. — To  annul  or  cancel. 

Venue. — The  neiarhborhood  or  place. 

Vi  et  armis. — With  force  and  arms. 

Vitiation. — Material  alteration  in  an  instrument. 

Vivum  vadium. — Live  pledi^e. 

Vouch. — To  call  to  warranty. 

W. 

Warranty. — A  p-narant}-  concerning  goods  given  by  a  vendor 
to  the  vendee. 


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